International agreements, including agreements on trade or cooperation and development assistance, are often tied to human rights provisions. Initially, these provisions in the FTAs between the EU and partners were introduced to establish a legal mechanism that would allow the EU to suspend its obligations under international agreements in cases of serious infringement of human rights. Later, human rights provisions were designed to make human rights the subject of political dialogue and cooperation mechanisms, thereby creating a legal basis for the application of measures to trade restrictions correspond to the severity of human rights violations(1). To ensure human rights provision to be implemented in practice, the new-generation FTAs(2) have built a mechanism to monitor the implementation of these provisions.

In the field of human rights and specialized documents, the phrase “United Nations human rights mechanism” refers to the apparatus of specialized agencies, systems, relevant rules, and procedures established by the United Nations to promote and protect human rights. Accordingly, referring to the human rights assurance mechanism in the new-generation FTAs ​​is to mention the institutions (agencies, organizations) and regulations (principles, order, procedures) set by FTA members to enforce the human rights assurance provisions in the FTAs.

1. Institutions ensuring human rights in new-generation FTAs

Though the structure of human rights institutions in each new-generation FTA varies by agreement, depending on the outcome of negotiations, these institutions often include i) a “High-Level Committee” (responsible for overseeing the implementation of the chapters related to trade, labor, and sustainable development); ii) a number of specialized committees, and iii) advisory groups that are “Civil Society Forums” (to facilitate dialogue on labor and sustainable development issues). In particular, the forum members include “national advisory groups” to implement the consultation mechanism. National advisory groups will be established by each party for the purpose of gathering views, opinions and making recommendations within their respective jurisdictions. These groups are often made up of representatives of businesses, labor unions, and civil society organizations(3).

For example, all agreements since the FTA between the EU and South Korea have a tripartite format, in which: i) Committees of state officials of the two sides are established to oversee implementation of human rights commitments; ii) Domestic advisory groups (DAG) include representatives of businesses, labor unions, NGOs and sometimes academies; iii) A panel of experts investigating the complaints raised by the parties(4). Specifically, in the FTA between the EU and South Korea, the provisions create a Commission on Trade and Sustainable Development comprising members of the EU Commission and the Government of Korea and domestic advisory groups including representatives of civil society. Members of national advisory groups include members of labor federations, environmental organizations, business organizations as well as other stakeholders. These advisory groups will perform advisory duties on the implementation of the terms. Under a set of the common term of cooperation in this FTA, the parties commit to opening dialogues on a list of 13 topics related to collaborative activities assessing the labor rights impact of the liberal process on trade-related aspects of the ILO agenda and cooperation at the multilateral level in the WTO and ILO. By mutual agreement, representatives of the parties will meet regularly to discuss the implementation of the chapter on labor and sustainable development(5). Thus, instead of just using official reports of the United Nations or the ILO as in WTO institutions, the new-generation FTAs establish the institution to utilize supervision advice and objectively independent judgment of expert groups, although the use of this mechanism is infrequent(6).

2. Regulations ensuring human rights in new-generation FTAs

Regulations include provisions for the functioning of institutions that guarantee human rights and provisions for the implementation of human rights commitments. Usually, the provisions for the implementation of human rights regulations in the new-generation FTAs ​​are divided into three basic groups as follows:

(1) A group of conditional labor provisions is a term that uses conditions to force participating members to fulfill their commitments. If the signatory member fails to fulfill their commitments, they could suffer economic consequences, in the form of monetary compensations or trade sanctions. This type of conditional provision is commonly used by the US and Canada. The conditional provisions often set standards relating to labor, human rights, and the use of conditions to encourage member countries to adopt and apply those standards. One party will receive incentives if they comply with the commitments, in some cases other benefits such as technical cooperation if applying the agreed labor standards. In contradictory, if any country does not apply or implement the standards mentioned, sanctions will be applied by the other party.

(2) A group of promotional labor provisions. These provisions do not link the implementation of the labor (or human rights) clauses to economic consequences, but provide a framework for the parties to dialogue, cooperate and monitor each other to improve the standards of working conditions in member countries. These terms can be found in the European Union (EU) agreements with New Zealand or the South-South agreements. These provisions often promote the realization of labor standards and human rights by influencing the interests or economic values of each country. If a country complies with the standards and measures stated in the agreement, it will enjoy certain economic benefits, such as increasing export quotas. But if the country violates and fails to overcome the status quo under the terms agreed, it will have to pay a sum of money (in the form of contributions to the labor fund). Incentives can be enforced at both national and corporate levels. In fact, most of the new-generation FTAs have these incentives. These provisions account for about 60% of the total labor regulations in trade embargo agreements, both past and present, and are one of the measures taken to deal with violations of human rights and democratic principles.

(3) A group of provisions related to dispute settlement mechanism to resolve specific cases if two parties have disagreements. Unlike the dispute settlement mechanism in ILO Conventions, the new-generation FTAs allow parties to use the dispute settlement mechanism such as suspending agreements or retaliatory measures with the other party. This measure would have three immediate effects on labor rights: First, it would end a rather extreme form of exceptional law against labor rights in international trade law, which has a huge gap between the enforcement tools of the ILO Convention and the enforcement tools of trade law and intellectual property rights. Second, it would provide parties to the agreement legal tools to enforce ILO Core Conventions in the absence of the other party’s cooperation. Last, it would establish an effective mechanism for the enforcement of labor rights if one member country continues to fail to comply with the arbitral tribunal’s rulings due to lack of respect for the ILO Convention by the provisional suspension of a free trade agreement or establishment of trade retaliation measures against the country.

In addition to the three groups of enforcement provisions mentioned above, several new-generation FTAs have provisions related to the “right of the amendment”. The example in the Trade Agreement between the EU and Korea contains provisions that scholars consider acting as a weakening of the binding validity of the rest of the document. These are parts of the terms that define “right of the amendment”. The included provisions are not intended to regulate labor standards but to determine how to resolve the problem in the event of a conflict between any clause of the free trade agreement and one of the ILO conventions listed in the sustainability clause. In these cases, countries will settle towards ensuring trade liberalization. Accordingly, labor rights must not hinder liberalization, and member countries are free to determine their degree of labor protection. As such, the governing clauses provide an ample amount of time for member countries to agree to govern their labor laws, even ignoring binding references to the ILO Convention.

3. Advantages and disadvantages of human rights assurance mechanism in new-generation FTAs

There are two basic advantages of the human rights assurance mechanism in the new generation FTA as follows:

First, the human rights assurance mechanism in the new generation FTAs has established a crystal-clear legal mechanism for the implementation of human rights provisions, especially those on labor and the environment. Though international trade agreements often have human rights provisions from early on, these provisions in previous trade agreements were often difficult to be enforced in practice due to a lack of legal mechanism. Today, new-generation FTAs have created a solid legal basis for human rights to be realized in practice. Human rights provisions in FTAs between the EU and partners can be seen to initially establish a legal mechanism to allow the EU to suspend its obligations under international agreements in cases of seriously violated human rights. It stemmed from the events that took place in the 1970s when the EU wanted to suspend its development aid to Uganda in response to the atrocities caused by the dictatorship but lacked of a legal mechanism to do that. Later, in bilateral and multilateral trade agreements, the EU introduced human rights provisions to affirm the commitments of the parties and the importance of these rights for achieving development goals. It is the legal basis for the parties to put human rights provisions into practice. The first references to human rights can be found in the 1989 agreement of the EU with its partners in Africa, the Caribbean, and the Pacific or the EU’s agreements with several Latin American, Central and Eastern European countries signed over time, or the agreement in 1992 with Brazil, the Andean Treaty countries, and the Baltic states and Albania. By 1995, the European Community had established a policy that included provisions relating to human rights in all its new-generation trade agreements(7).

Second, the establishment of a human rights dispute settlement mechanism helps member countries to limit weaknesses in human rights protection mechanisms in ILO Conventions. Most labor and human rights standards in new-generation FTAs are referenced in fundamental ILO Conventions. However, unlike the WTO, where commitments recorded in binding trade agreements are guaranteed by a compulsory dispute settlement mechanism and trade retaliation between member countries. Labor rights protection regulations in the ILO do not have such an enforcement mechanism(8). Therefore, under the application of the ILO mechanism, if one of the member countries violates one of the ILO Conventions covered in free trade agreements, the only viable option for the private party is to ask their Government to start one of the political cooperation mechanisms through dialogue and negotiation. In the absence of domestic protections, the treaty does not provide any additional legal protections to ensure the protection of individuals against infringement of their labor rights as well core labor standards, it is best for companies, businesses, and private organizations to try encouraging their Government to form a Committee of experts to deal with labor violations. However, even in situations where the Government is willing to deal with the problem, this would not go beyond diplomatic instruments, then law enforcement would be impossible. There are limitations in the labor rights protection mechanism of the ILO Conventions. The reality of implementing human rights commitments over years shows that many member countries continue to disobey the arbitral tribunal’s rulings due to lack of respect for the ILO Convention and the lack of strong enforcement mechanisms. The ILO conventions are mainly based on the voluntary implementation of the parties. Consequently, human rights violations still occur in many countries, even those who are members of the Convention. Hence, linking the obligation to ensure human rights with trade interests created by the new-generation FTAs will create an incentive for member countries to strictly comply with the standards of ensuring human rights(9).

Despite many advantages, the human rights assurance mechanism in the new-generation FTA still reveals several limitations, such as:

First, the commitments in the new generation FTAs are, in principle, commitments between governments, but these commitments do not create rights and legal obligations for individual and legal entities. Only a few countries recognize these commitments as a direct application. This results in a very limited ability to apply provisions contained in human rights assurance(10). Research by Meredith Kolsky Lewis (2014) shows that “even the human rights provisions in the existing FTAs are having a positive effect, these agreements do not reach the most important people”(11).

Second, the human rights institutions established by the new-generation FTAs are often ineffective since they do not promote the role of member organizations. This is related to the lack of clear regulations for the operation of civil society organizations and the lack of mechanisms for monitoring and evaluating the performance of institutions. The role of monitoring and evaluation of civil society organizations in the human rights assurance institution in the new-generation FTA is currently considered to be lack of clarity. Although EU trade policy-makers repeatedly emphasize the importance of monitoring mechanisms, they see the establishment of monitoring mechanisms with the participation of civil society organizations as a mean of collecting information. However, this role of monitoring organizations is not clearly described in the new-generation FTAs. These agreements often refer vaguely to the role of domestic advisory groups as an organization to provide “views” and “advise” to facilitate “dialogue”.

Third, the provisions of the new-generation FTA also allow for the flexibility needed for parties to tailor their responses to local conditions, but this may lead to inconsistencies in approaches between different trading partners or leads to inaction. Consequently, the effectiveness of human rights assurance mechanisms in new-generation FTAs ​​is susceptible to changes in government and political priorities(12). This is especially true in the context that each country participating in FTA negotiation and implementation has different political goals, so they can focus on economic interests rather than on human rights(13).

Currently, Vietnam has signed and joined new-generation FTAs, especially the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Free Trade Agreement between Vietnam and the EU (EVFTA). Therefore, Vietnam should focus on promoting the basic advantages of the human rights assurance mechanism in the new-generation FTAs, while limiting the negative effects of these FTAs ​​on the assurance of human rights domestically.

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Endnotes:

(1) “Human rights in EU trade agreements”, (https://www.europarl.europa.eu/RegData/etudes/BRIE/2019/637975/EPRSBRI(2019)637975_EN.pdf.

(2), (9) Ngo Quoc Chien: Human rights values through free trade agreements and challenges for Vietnam, Journal of Legislative Studies No. 08 (384)-2019, http://lapphap.vn/Pages/tintuc/tinchitiet.aspx?tintucid=210300.

(3), (12) Jennifer Zerk (2019): Human Rights Impact Assessment of Trade Agreements, https://www.chathamhouse.org/sites/default/files/2019-2-18 HumanRightsTradeAgreements.pdf.

(4), (5) Giovanni Gruni (2017): “Labor Standards in the eu-South Korea Free Trade Agreement” (https://brill.com/view/journals/kjic/5/1/article-p100_6.xml?language=en).

(6) Isabelle Loannides, 2017, The effects of human rights related clauses in the EU-Mexico Global Agreement and the EU-Chile Association Agreement, https://eulacfoundation.org/en/system/files/the_effects_of_human_rigth.pdf), p.34.

(7)”Human rights in EU trade agreements”, (https://www.europarl.europa.eu/RegData/etudes/BRIE/2019/637975/EPRS_BRI(2019)637975_EN.pdf.

(8), (10) Nguyễn Tiến Vinh: Human rights protection in the framework of WTO trade agreements in the book of Le Thi Hoai Thu and Vu Cong Giao: Effects of free trade on human rights, Hồng Đức Publishing House, Hanoi, 2016, p.81, 79.

(11) Meredith Kolsky Lewis (2014): Human Rights Provisions in Free Trade Agreements: Do the Ends Justify the Means?, 12 Loy. U. Chi. Int’l L. Rev. 1 (2014), htt://lawecommons.luc.edu/lucilr/vol12/iss1/2.

(13) Nguyen Minh Tam: The impact of free trade agreements on human rights in the book of Le Thi Hoai Thu and Vu Cong Giao: Effects of free trade on human rights, Hong Duc Publishing House, p.25.

Assoc. Prof., Dr. Le Van Trung

Institute of Human Rights,

Ho Chi Minh National Academy of Politics