Human Rights in the Trade and Sustainability Impact Assessment of the EU–Tunisia Free Trade Agreement

Human Rights in the Trade and Sustainability Impact Assessment of the EU–Tunisia Free Trade... Abstract This article critically examines the integration of human rights in the trade and sustainability impact assessment of the proposed Deep and Comprehensive Free Trade Agreement between the EU and Tunisia. The main contribution of this article is to list the basic requirements of a human rights impact assessment methodology in the form of a list of questions as a means to evaluate impact assessments of trade agreements. Using this list, the article demonstrates how the EU–Tunisia assessment meets many of the formal requirements of human rights impact assessment but that the underlying human rights analysis and recommendations were weak and that the approach to consultation and participation of individuals and groups in the assessment process needs review and strengthening. The article recommends the continued professionalization of human rights impact assessment of trade agreements and concludes by noting that the 2015 adoption by the European Commission of Guidelines on the analysis of human rights impacts in impact assessments of trade-related policy initiatives provides a clearer framework to guide and improve future assessments. Introduction Experience in the area of human rights impact assessments (HRIAs) of trade agreements has grown considerably over the last 15 years. The development of methodologies and the commissioning of HRIAs have not only helped understand the impacts of trade agreements but also demonstrate the benefits and challenges of HRIAs. Today, two types of HRIAs of trade agreements dominate: the first examines impacts of trade agreements principally on the enjoyment of human rights (stand-alone HRIAs); the second examines human rights impacts of trade agreements along with other impacts, including economic, environmental and social impacts (integrated IAs). The European Commission’s Trade and Sustainability Impact Assessments (TSIAs) fall into the latter category of integrated IAs and provide the largest pool of HRIAs of trade agreements. Initial TSIAs did not include human rights analysis. However, in 2012 the Council of the European Union decided that all impact assessments would include a human rights component, including impact assessments of trade agreements (Council of the European Union 2012). From then until December 2016, the European Commission has finalized ten TSIAs that include human rights analysis and the Commission has developed guidelines as a means of systematizing the integration of human rights into trade and sustainability impact assessments (European Commission 2015). Whether stand-alone or integrated, HRIAs should meet the basic expectations of a human rights methodology. Several examples and guidelines of HRIA methodologies of trade agreements already exist (UN Human Rights Council 2011; Harrison 2010; Walker 2009, 2011; Forman and MacNaughton 2015; Bürgi Bonanomi 2014; Paasch et al. 2011; Berne Declaration et al. 2010; Braunschweig et al. 2014; European Commission 2015). There is common agreement that IAs should examine potential or past impacts of the trade agreement on human rights, but should also examine whether the trade negotiations respect human rights principles of non-discrimination, participation and transparency, and accountability. Moreover, the impact assessment methodology itself should respect human rights, such as using participatory impact assessment methods and ensuring transparency in undertaking the impact assessment. The purpose of this article is to examine how trade TSIA practice is meeting the basic expectations of an HRIA methodology. This responds to calls for a greater professionalization of human rights impact assessments and better understanding of the key elements of HRIA (Harrison 2013; Walker 2011). To do so, the article considers one TSIA—the TSIA related to the Deep and Comprehensive Free Trade Agreement (DCFTA) between the EU and Tunisia, which was commissioned in 2012 and finalized in 2015 with the publication of the European Commission’s response to the TSIA’s recommendations. The decision to look at only one TSIA was based on the need to do a close reading of the methodology as it concerns human rights. This provides the basis for a more comprehensive review of all TSIAs incorporating human rights impact assessment which could examine an evolution in practice over time. The Tunisia TSIA was chosen as the focus as one of the more recent TSIAs at the initial stages of drafting this article. It was also chosen given the complex human rights challenges the country has experienced in the past. The presence of such significant human rights challenges, and the current transition towards the rule of law that affects many aspects of Tunisian society, highlight the importance of considering the human rights context and impact of important decisions, such as the negotiation of a trade agreement. Not only might the future trade agreement affect human rights but the fragile human rights context might also affect the implementation of the trade agreement. Since the finalization of the Tunisia TSIA, the European Commission has adopted Guidelines on the Analysis of Human Rights Impacts in Impact Assessments of Trade-Related Policy Initiatives in 2015 (European Commission 2015) and consultants have begun to refine the human rights analysis of a recent TSIA. Once sufficient practice is available on TSIAs in light of the Guidelines, the methodology identified in this article can be used to review these subsequent assessments. The article builds on other work in this journal examining human rights impact assessment (Harrison 2011; Walker 2011; Forman and MacNaughton 2015). In examining a rights-based approach to impact assessment, the article appeals not only to those interested in impact assessment but also to a broader audience interested in rights-based approaches, as the analysis also applies to other areas of development and economic activity. The trade and sustainability impact assessment of the EU–Tunisia Deep and Comprehensive Free Trade Agreement In 2011, in the context of the Arab Spring, the European Union began considering the negotiation of Deep and Comprehensive Free Trade Agreements with selected Southern Mediterranean partners, one of which was Tunisia. With a view to informing the negotiations of the economic, social and environmental impact of such agreements and as a result of requirements by the Council of the European Union, the European Commission undertook ex ante Trade and Sustainability Impact Assessments (TSIA) of the affected countries. To do so, the Commission engaged ECORYS, an independent consultancy undertaking research, consultancy and management services. The TSIA related to the EU and Tunisia negotiations was undertaken in 2013 (ECORYS 2013c). The first round of trade negotiations took place in April 2016 (European Commission web page on Tunisia, http://ec.europa.eu/trade/policy/countries-and-regions/countries/tunisia, referenced 27 December 2016). The objective of the TSIA was to assess the economic, social, human rights and environmental impact of a future DCFTA in both the EU and in Tunisia with a view to proposing trade and non-trade measures to maximize benefits and prevent or minimize potential negative impact (European Commission 2012: 15). The TSIA used a layered methodology. First of all, a preliminary screening and scoping of sectors identified the main trade-related sectors to be subject to the impact assessment. It should be noted that the TSIA was undertaken prior to the preparation of a negotiation text, so the TSIA’s starting point was not a potential agreement or trade provision but the current trade situation between the EU and Tunisia upon which negotiation scenarios were based. Next, the assessment analysed the likely economic, social, human rights and environmental impacts of these trade scenarios on the sectors identified through the preliminary screening. Then, a secondary screening narrowed and deepened the assessment’s focus on four specific areas: fruits, vegetables and nuts; textiles, leather and clothing; retail distribution; and water scarcity and quality (ECORYS 2013a: 15). The analysis consisted primarily of building two scenarios—a baseline scenario and a liberalization scenario—as inputs to a Computable General Equilibrium (CGE) model. On this basis, the assessment identified the main potential impacts of the DCFTA on income and wages. Subsequently, quantitative and qualitative social and environmental analysis complemented the results of the CGE model to arrive at an overall indication of the likely economic, social, human rights and environmental impacts of the DCFTA. The TSIA included a stakeholder consultation process in the form of meetings and workshops, surveys and interviews with key informants. The final report set out the conclusions of the TSIA and policy recommendations and proposals for accompanying measures designed to prevent or mitigate potentially negative impacts of a DCFTA (ECORYS 2013c). In 2015, the European Commission published a position paper on the TSIA setting out its response to the policy recommendations (European Commission 2014). The Commission generally took note of recommendations, took on board a minimum of recommendations, and set out why other recommendations could not be addressed directly in the DCFTA. Assessment of the human rights analysis of the trade and sustainability impact assessment A rights-based framework for impact assessment HRIAs of trade agreements share many of the same methodological aspects of other impact assessment methodologies in the environmental or social field, such as the step-by-step processes that structure the assessment and the qualitative and quantitative data collection and analysis techniques. What distinguishes an HRIA methodology from other impact assessment methodologies is its approach to the assessment process—often referred to as a rights-based approach. A rights-based approach to assessment can be understood as comprising the following interconnected elements (Walker 2009): The assessment should expressly link its analysis to norms and standards in human rights treaties and national laws. The assessment should examine the extent to which the trade agreement respects human rights during the negotiations. The assessment should itself respect human rights. In other words, the process underlying the assessment should promote popular participation and respect principles of non-discrimination, participation, transparency and accountability in its methodology. These three elements should then influence the various steps of the impact assessment methodology. The first step in the IA process is the preparation step where the objectives, terms of reference of the assessment and the context of the impact assessment are set. During the preparation stage for an HRIA, the assessors should: Identify measurement of impact on human rights among the objectives of the assessment and refer explicitly to human rights standards. Undertake a baseline study that identifies the human rights situation of the states that will be party to the future agreement, explicitly referring to their human rights treaty commitments and referring to reliable sources of human rights information. Identify a consultation and participation plan so that the assessment itself respects human rights principles of participation, transparency and non-discrimination. Ensure that the assessors undertaking the assessment are independent, have adequate funding and time and that the team includes someone with human rights expertise and expertise in participatory assessment techniques and stakeholder consultations. The screening step should identify those trade measures to be subject to the assessment by reference to their potential impact on human rights (not only their potential impact on growth). The screening stage should: Seek to identify the trade measures more likely to have an impact on human rights. Determine which human rights might be affected and the significance of the likely impact. While the screening step narrows the focus, the next step, the scoping step, should elaborate the different negotiating scenarios and the types of impacts to be subject to assessment. From a human rights perspective, the scoping step should: Elaborate the nature of the particular trade measure under assessment and identify sufficient trade negotiation scenarios so as to have a comprehensive understanding of how the trade agreement might affect human rights. Elaborate the theoretical human rights impacts to be assessed as well as the individuals and groups whose rights are more likely to be affected. Choose indicators that are capable of measuring human rights impact (Harrison 2010: 10). In order to understand in a comprehensive way the impact of trade on human rights, it is important to go beyond only outcome indicators—such as the number of individuals foregoing basic health care—and examine also structural indicators that demonstrate commitment to human rights (for example, ratification of treaties, existence of laws and policies) as well as process indicators that represent the effort placed by the state to respect, protect and fulfil human rights (for example, allocation of budgets to policies and strategies) (UN OHCHR 2012). Choose data collection and analysis methods (assessment techniques) that facilitate the collection of human rights relevant data, not only economic data. For an HRIA, it is important to rely on both qualitative as well as quantitative data. The data collection and analysis step should collect relevant data, including data related to the enjoyment of the rights of individuals and groups, particularly the more vulnerable, and include statements on the likely short- and long-term impact of the trade agreement on individuals’ rights and on the obligations of the parties to the future agreement as recognized in human rights treaties and national human rights legislation. The data collection and analysis stage should also seek public participation as much as feasible and clearly reflect the results of participation in the analysis. Conclusions might indicate positive impact, no impact, or negative impact, and recommendations should propose options for the trade agreement that are most likely to have a positive impact on human rights. The final step in the HRIA process is monitoring and evaluation of the TSIA itself. HRIA methodologies highlight monitoring and evaluation, particularly where the IA identifies potential risks of human rights violations. In such cases, monitoring should ideally prevent violations occurring but also identify violations and help victims seek remedies if they occur. This section should also propose an ex post evaluation of the implementation of the trade agreement after a period of time. An important element of a rights-based approach to impact assessment is that the assessment itself should respect human rights principles. This highlights the need for active, free and meaningful participation of rights holders and duty bearers throughout the assessment and, as noted above, encourages the use of participatory assessment methodologies that address the concerns of both men and women and of the most vulnerable segments of the population. Participation goes beyond consultation and should seek to empower people by bringing them together, raising awareness of trade and ultimately engaging them in the negotiation process. Importantly, the assessment team should include someone with knowledge of participatory assessment techniques and stakeholder consultation so that participation does not simply become an adjunct of the HRIA but an integral part of its methodology. The rest of this section examines the extent to which the TSIA of the EU–Tunisia DCFTA respects a human rights methodology, considering the extent to which the TSIA analysis is grounded in human rights standards and principles and respects human rights principles in its own methodology. Is the assessment grounded in human rights standards and information? The objectives of the TSIA, as set out in the invitation to tender, state that the TSIA should assess how the provisions under negotiation affect economic, social, human rights and environmental issues in the EU and in Tunisia and should propose measures to maximize benefits and prevent or minimize potential negative impacts (European Commission 2012: 15). In doing so, the invitation to tender indicates that the analysis should take into account fundamental rights issues as set out in the Charter of Fundamental Rights of the European Union as well as UN conventions. The invitation to tender requires the identification of those rights to be affected by the DCFTA and ‘the degree of interference with the right(s) as well as the necessity and proportionality of the interference in terms of policy options and objectives’ (ibid: 17). Reflecting this, the TSIA is grounded in reliable sources of human rights information. In particular, the analysis expressly relies on standards in human rights treaties, whether ratified or not by Tunisia, as well as the status of implementation of ratified treaties (ECORYS 2013a: 30). Information sources include the results of reviews by the UN treaty bodies and universal periodic review, and NGO reports (ibid: 30–1). Were the trade and sustainability impact assessment experts sufficiently independent and knowledgeable about human rights? The TSIA should be independent, sufficiently funded and include adequate human rights expertise. In this regard, it is relevant to note that the European Commission began the process through public tender and the assessment team had to demonstrate that it comprised experts with experience in human rights (European Commission 2012: 37). The invitation to tender sets out a governance structure which includes a requirement to report periodically to the European Commission Steering Committee and to meet with other officials (European Commission 2012: 22). This governance structure has led to criticism of TSIAs in the past as a risk to the consultant’s independence—real or perceived (Bürgi Bonanomi 2014: 21). The tender was awarded to ECORYS, an independent consultancy firm based in the Netherlands. A review of the website of ECORYS indicates that the consultancy is independent although human rights are not listed as an area of expertise and only one project in its Corporate Brochure refers to a human rights project (http://www.ecorys.com, referenced 13 January 2017). Is there a comprehensive human rights baseline study? The TSIA includes a comprehensive human rights baseline study which is set out in the Final Interim Technical Report (ECORYS 2013b: 60–70). The baseline study reviews the national legislative framework and the international treaties ratified by Tunisia, the cooperation with UN and regional human rights mechanisms, positive developments as well as challenges. A table sets out in detail the human rights issues in Tunisia. The table respects the indivisibility of rights and sets out the main civil and political rights issues in Tunisia—as well as the situation of enjoyment of economic, social and cultural rights. The baseline study also identifies the rights of specific individuals and groups (persons with disabilities, women, children, lesbian, gay, bisexual and transgender (LGBT), minority and indigenous and refugees and migrants) who might be in a marginalized situation and therefore potentially vulnerable to legal and policy changes arising from a trade agreement. In addition to identifying the rights of specific individuals, the baseline study identifies to some extent specific institutions in Tunisia responsible for meeting human rights obligations, such as the Minister of Justice, security forces and police, and a National Commission to Combat Trafficking in Persons (ECORYS 2013b: 63–4). Unlike the references to individuals and groups, responsible ministries and other governmental actors are referred to sporadically throughout the baseline study and are not grouped under a separate heading of ‘duty bearers’. Consequently, it is possible that the list of duty bearers is not comprehensive. In keeping with a rights-based approach, this comprehensive overview of the human rights situation in Tunisia goes beyond a neutral description of the context of the TSIA and includes both positive and negative aspects. For example, the baseline study indicates challenges in relation to reforms of the judiciary, independence of the media, freedom of expression, criminal investigations, torture and employment (ECORYS 2013b: 62). Implicit in this analysis is that these factors could affect how changes in trade rules and policies might in turn affect human rights. In spite of the objectives of the TSIA including both the EU and Tunisia in its scope and the introduction of the human rights analysis section referring to examination of the effects of the DCFTA on people in the ‘two blocks’, namely Tunisia and the EU, there is no baseline study of human rights in the EU and the TSIA does not analyse human rights impacts in the EU at any step in the assessment. Are appropriate significance criteria used for screening trade measures subject to assessment? The TSIA relies on five criteria for the screening of trade measures, namely initial importance for the economy; expected economic impact of the trade agreement; social, human rights and environmental impact; stakeholder issues of special importance; and strategic importance of the sector/issue in the negotiations (ECORYS 2013a: 43; 2013b: 107). Thus, potential human rights impact is included within the screening criteria, in keeping with the requirements of a human rights methodology. In addition, as part of the human rights analysis, the TSIA relies on significance criteria to analyse the human rights impact of the DCFTA. Specifically, these are: human rights stress; direction of change compared to the baseline; nature, magnitude, geographical extent, duration; and the reversibility of expected changes (ECORYS 2013b: 73). These latter significance criteria therefore mirror those criteria identified in other HRIA methodologies (Walker 2009: 93). Are the trade measures under assessment the most relevant to understand their impact on human rights? The invitation to tender suggests some possible areas for focus of the TSIA, including agriculture, industrial products, business services, post, transport and telecommunications (European Commission 2012: 19–20). Subsequently, the preliminary screening step identifies the main issues to focus attention and resources at an early stage (ECORYS 2013a: 44), resulting in the identification of a range of sectors for inclusion in the assessment (ibid: 43–8). The screening is further refined after the initial economic, social, human rights and environmental analysis through a second screening phase to focus on vegetables, fruit and nuts; textiles, leather and clothing; retail distribution; and water scarcity and quality (ECORYS 2013b: 107–16). As noted above, the significance criteria to screen sectors included potential impact on social and human rights (ECORYS 2013a: 43–4). However, in practice, potential impact on human rights was not actively employed as a criterion (ECORYS 2013b: 112). General human rights analysis of trade agreements has identified a range of trade sectors which are more likely to affect the enjoyment of human rights. These include agricultural trade, services, the regulation of sanitary and phytosanitary measures (SPS), technical barriers to trade (TBT), as well as government procurement, investment, intellectual property protection and dispute settlement (Walker 2009: 60–1). For example, the potential negative human rights impacts of trade-related intellectual property protection are stark, particularly on access to medicines, and have been the subject of previous HRIAs (Forman and MacNaughton 2015; Harrison 2013; Walker 2011). The TSIA screens in some of these trade sectors, such as agricultural trade. However, other areas of human rights concern are not explicitly treated, such as dispute resolution, or are screened out summarily, such as intellectual property protection and TBT/SPS, even though they were raised during the stakeholder consultation process (ECORYS 2013b: 114). Of course choices have to be made due to limited resources or time. However, the TSIA could explain those choices more clearly. While the screening in of water quality and scarcity is explained due to the pressure that the DCFTA will put on water resources, the corresponding exclusion of other horizontal issues (intellectual property, competition, SPS, TBT, land, corruption) are not. Reading the TSIA from a human rights perspective, there is an unexplained gap. Are sufficient trade negotiation scenarios identified? The TSIA relies on two scenarios: the likely outcomes of the negotiations and a baseline scenario of a continuation of recent trends in Tunisia (ECORYS 2013a: 15). This is in line with the general TSIA methodology and compatible with the HRIA methodology (UN Human Rights Council 2011: Guideline 7) although HRIA methodologies also envisage assessing a further scenario providing greater flexibility to the parties to the agreement, or scenarios permitting certain exceptions to trade rules. While the use of two scenarios—one with a DCFTA and one without—might be more efficient in terms of making a complex assessment more focused, it also reduces the ability to examine the impact of a variety of scenarios of trade measures with a view to adopting trade rules that have optimal impact on human rights. Are the assessment techniques appropriate for collecting and analysing human rights data? The assessment techniques mirror those indicated in the HRIA methodology. The terms of reference for the TSIA stipulate the need ‘to complement quantitative and qualitative analysis with inputs from stakeholders’ (European Commission 2012: 14). Methodologies include economic modelling, analysis of household-level quantitative data, as well as literature reviews, analysis of reports under international conventions, interviews with key informants and stakeholders, causal chain analysis and consultations (ECORYS 2013a: 10). The results of economic modelling play an important role in the overall analysis by indicating likely economic impacts such as national income and wages. These data are complemented with the analysis of household level data as well as other quantitative data (ECORYS 2013b: 21–2). The Inception Report sets out a consultation plan and the annex to the Inception Report sets out some 250 relevant stakeholders consulted, including European and Tunisian human rights organizations, and summarizes various inputs (ECORYS 2013a: 35–9, Annex A and E). Consultation techniques ranged from interviews, workshops, public meetings, a dedicated website and email address as a means of disseminating information and communicating with stakeholders (ibid: 38–9). The quantitative and qualitative data were analysed through causal chain analysis so that relevant cause–effect links between trade measures and impacts are made explicit (ECORYS 2013b: 23). Are appropriate human rights indicators identified to guide measurement? The human rights indicators relied upon by the TSIA are generally implicit in the analysis. They do not appear in a table dedicated to indicators and they are not categorized as outcome, process and structural indicators. For example, in the baseline study, the TSIA notes that ‘[o]ne of the most positive steps made is the ratification of several key international human rights treaties and their protocols’ (ECORYS 2013b: 61). This is a structural human rights indicator although it is not explicitly referred to as such. Similarly, the TSIA identifies indicators such as the ‘gender gap’—an outcome indicator for the enjoyment of women’s rights—and the education budget—a process indicator for the right to education (ibid: 71, 72). Later on at the analysis stage, the TSIA similarly embeds the indicators in its narrative—for example, referring to the indicator of ‘government revenue’ when noting that the DCFTA will have an unclear impact on government revenue, including for education (ibid: 75). In not identifying an explicit set of human rights indicators, it becomes difficult to identify the indicators underlying the measurement of potential human rights impact, which in turn makes the analysis opaque and disconnected. Is the human rights analysis comprehensive? The TSIA identifies the human rights impacts subject to the TSIA in two phases. First of all, relying on the baseline study, the TSIA identifies those human rights most likely to be affected by the DCFTA (ECORYS 2013b: 70). This is done through the use of a table (table 3.4 in the Final Interim Technical Report) which identifies the rights from the baseline study in one column, the short description of the potential link to the DCFTA in the second column, and then the third column completes the screening using a ‘Yes/No’ format indicating whether the particular right would be affected by the DCFTA or not. So, for example, the table in the Report indicates that the DCFTA is unlikely to affect freedom of expression and the media and is therefore screened out with a ‘No’ (although the accompanying text also suggests that the DCFTA could strengthen civil society without explaining how), while regulatory approximation as part of the DCFTA and the application of the EU sanitary and phytosanitary standards in Tunisia could affect health conditions and so the right to health is screened with a ‘Yes’. Table 1 provides an illustration of part of that table. Table 1. Illustration of part of the table used in the TSIA to identify rights most likely to be affected by the DCFTA Human rights issue Why relevant for DCFTA? Affected by DCFTA? Right to health Regulatory approximation as part of the DCFTA will result in the application of EU SPS (including food safety) standards in Tunisathis will affect health conditions. Also, budgetary consequences of the DCFTA could affect funding availability for hospitals and other health-related public services. Yes Human rights issue Why relevant for DCFTA? Affected by DCFTA? Right to health Regulatory approximation as part of the DCFTA will result in the application of EU SPS (including food safety) standards in Tunisathis will affect health conditions. Also, budgetary consequences of the DCFTA could affect funding availability for hospitals and other health-related public services. Yes Table 1. Illustration of part of the table used in the TSIA to identify rights most likely to be affected by the DCFTA Human rights issue Why relevant for DCFTA? Affected by DCFTA? Right to health Regulatory approximation as part of the DCFTA will result in the application of EU SPS (including food safety) standards in Tunisathis will affect health conditions. Also, budgetary consequences of the DCFTA could affect funding availability for hospitals and other health-related public services. Yes Human rights issue Why relevant for DCFTA? Affected by DCFTA? Right to health Regulatory approximation as part of the DCFTA will result in the application of EU SPS (including food safety) standards in Tunisathis will affect health conditions. Also, budgetary consequences of the DCFTA could affect funding availability for hospitals and other health-related public services. Yes Once the relevant rights are screened, the TSIA identifies the potential human rights impacts (ECORYS 2013b: 73). To do so, the TSIA adopts a typology of generic human rights impacts of trade agreements (Walker 2009: 61–86). These generic impacts include potential positive impacts—for example, trade agreements promote growth and resources for the realization of human rights—as well as potential negative impacts—for example, trade agreements can limit government capacity to promote human rights. These are adapted to the analysis of the DCFTA again through the use of another table (ibid: table 3.5). The TSIA presents the generic human rights impact in a column, followed by a second column which sets out the potential human rights impacts of the DCFTA, while a third column indicates the significance of the impact, referring to the human rights stress, the direction of the change compared to the baseline as well as the nature, magnitude, geographical extent, duration and reversibility of expected changes. Finally, a row under each impact analysed sets out a conclusion as to the expected effect of the DCFTA. Table 2 provides an illustration of part of that table. Table 2. Illustration of part of the table used in the TSIA to identify most likely human rights impacts as a result of the DCFTA Categories of impact of DCFTA on human rights overall Potential human rights effects Significance Trade law complements human rights law The EU approaches FTAs as part of a constitutional, framework to support democracy, political stability and respect for human rights, hence the name DCFTA. This implies that human rights are also taken into account, alongside the pure trade-related provisions. In that sense we expect therefore a positive effect of the DCFTA on human rights. A small positive effect of the ‘DC’ element of the FTA is expected because of the constitutional framework the EC employs in these negotiations. The geographical extent runs across the country. The chance for reversibility of this change is low as it will be enshrined in the DCFTA as well as—in part—in Tunisian national law. Categories of impact of DCFTA on human rights overall Potential human rights effects Significance Trade law complements human rights law The EU approaches FTAs as part of a constitutional, framework to support democracy, political stability and respect for human rights, hence the name DCFTA. This implies that human rights are also taken into account, alongside the pure trade-related provisions. In that sense we expect therefore a positive effect of the DCFTA on human rights. A small positive effect of the ‘DC’ element of the FTA is expected because of the constitutional framework the EC employs in these negotiations. The geographical extent runs across the country. The chance for reversibility of this change is low as it will be enshrined in the DCFTA as well as—in part—in Tunisian national law. Expected effect: small positive effect of trade law on implementation of and adherence to human rights law— especially labour law where the DCFTA will enhance mechanisms to monitor and enforce. Table 2. Illustration of part of the table used in the TSIA to identify most likely human rights impacts as a result of the DCFTA Categories of impact of DCFTA on human rights overall Potential human rights effects Significance Trade law complements human rights law The EU approaches FTAs as part of a constitutional, framework to support democracy, political stability and respect for human rights, hence the name DCFTA. This implies that human rights are also taken into account, alongside the pure trade-related provisions. In that sense we expect therefore a positive effect of the DCFTA on human rights. A small positive effect of the ‘DC’ element of the FTA is expected because of the constitutional framework the EC employs in these negotiations. The geographical extent runs across the country. The chance for reversibility of this change is low as it will be enshrined in the DCFTA as well as—in part—in Tunisian national law. Categories of impact of DCFTA on human rights overall Potential human rights effects Significance Trade law complements human rights law The EU approaches FTAs as part of a constitutional, framework to support democracy, political stability and respect for human rights, hence the name DCFTA. This implies that human rights are also taken into account, alongside the pure trade-related provisions. In that sense we expect therefore a positive effect of the DCFTA on human rights. A small positive effect of the ‘DC’ element of the FTA is expected because of the constitutional framework the EC employs in these negotiations. The geographical extent runs across the country. The chance for reversibility of this change is low as it will be enshrined in the DCFTA as well as—in part—in Tunisian national law. Expected effect: small positive effect of trade law on implementation of and adherence to human rights law— especially labour law where the DCFTA will enhance mechanisms to monitor and enforce. An additional section is added specifically on the issue of child labour in Tunisia. The TSIA notes that there is evidence of child labour in Tunisia, and it identifies a series of factors such as parental illiteracy and poverty that lead to child labour. The potential impact of the TSIA is presented in a table comprising three columns, the first illustrating the causes of child labour, the second indicating the expected DCFTA impact, and the third setting out the direction and size of the impact. The TSIA concludes that if the government employs proper complementary measures, often referred to as flanking measures, such as domestic policies to promote education through spending additional tax revenues, then the DCFTA could have an effect of reducing child labour (ECORYS 2013b: 78). Table 3 provides an illustration of part of that table from the Final Report. The analysis provides some relevant human rights insights. For example, the TSIA indicates that government revenue might increase as a result of the DCFTA which might allow increases in health and education budgets and therefore the rights to education and to health, although this depends on the government’s policy choices (ECORYS 2013b: 75). The observation highlights the role of the government as duty bearer of the rights to health and to education and highlights its power to use the benefits of trade to fulfil human rights. However, the description of the impact is superficial and does not explain counter scenarios, for example, the impact on health and education if government revenue does not increase. Table 3. Illustration of part of the table used in the TSIA to examine the impact of DCFTA on child labour Expected DCFTA impact Direction and size of the effect If government spends its additional tax revenue on education and reducing illiteracy, this cause may be reduced to some extent Potential positive and significant effect of the DCFTA—as parents–children link is very strong Expected DCFTA impact Direction and size of the effect If government spends its additional tax revenue on education and reducing illiteracy, this cause may be reduced to some extent Potential positive and significant effect of the DCFTA—as parents–children link is very strong Table 3. Illustration of part of the table used in the TSIA to examine the impact of DCFTA on child labour Expected DCFTA impact Direction and size of the effect If government spends its additional tax revenue on education and reducing illiteracy, this cause may be reduced to some extent Potential positive and significant effect of the DCFTA—as parents–children link is very strong Expected DCFTA impact Direction and size of the effect If government spends its additional tax revenue on education and reducing illiteracy, this cause may be reduced to some extent Potential positive and significant effect of the DCFTA—as parents–children link is very strong The TSIA also highlights the potential for labour standards to come under pressure as a result of increased competition in the labour market, potentially affecting vulnerable groups disproportionately. The analysis indicates that the government has not ratified the individual complaints mechanism under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and that this could detract from a stronger legal environment to combat this race-to-the-bottom of labour standards (ECORYS 2013b: 76). On the one hand, this highlights the role of availability of remedies—in the form of individual complaints mechanisms at the international level—as a way to mitigate and avoid potentially negative impacts on rights. However, the analysis does not look at the more relevant issue of the types of remedies existing at national level to resolve labour disputes, whether they are viable and reliable, and whether workers can access them. Individual complaints mechanisms at the international level are useful as a last resort and as a means of strengthening national protection systems over time, but they are secondary to dealing effectively with labour issues, particularly if these are exacerbated by the introduction of new trade rules. Consequently, the human rights analysis in the TSIA needs considerable strengthening. First, the analysis could have been further elaborated and unpacked. The TSIA combines the screening, scoping and analysis steps of the impact assessment into one step and presents the analysis through tables 3.4 and 3.5. While presentation of information in tables can often help the reader visualize the results of analysis, tables are an inadequate means to present complex analyses. In particular, the cause–effect relationship between the introduction of a trade measure and its impact on human rights is generally indirect—in other words, the economic impact of the trade measure might have further economic, environmental and policy implications before it affects an individual’s rights, and other factors, such as the supporting institutional and policy framework and the availability of adequate remedies, qualify the impact. These are complex interactions which require some explanation. In this regard, the analysis does not do so. Further, the analysis provides few insights into the capacity of individuals to enjoy their rights and the capacity of duty bearers to meet their responsibilities. This capacity analysis can be very important in helping to understand the extent to which negative impacts can be avoided through strong institutional frameworks or whether potentially positive impacts can be optimized effectively, for example through public participation in policymaking. To give an example, a capacity analysis of right to health impacts (see Table 1 above) would consider the capacity of the Ministry of Health to absorb new regulations and changes in the budgetary situation, while a capacity analysis of rights holders would examine the extent to which individuals can access the health system and essential medicines. Thus, if the capacity of the Ministry of Health was low for some reason (such as understaffing, disorganization or corruption), it might have difficulties absorbing even potentially positive regulatory changes and transforming budgetary increases into benefits for individuals. The analysis is sometimes incomplete and lacking coherence. Table 3.4 in the Final Interim Technical Report, which sets out the human rights likely to be affected by the DCFTA, does not always correlate with the likely human rights impacts identified in table 3.5. For example, table 3.4 indicates that the DCFTA could affect the significant gender gap in Tunisia, particularly in employment, although without indicating if those impacts would be positive or negative (ECORYS 2013b: 71). However, table 3.5 does not refer to the impact of the DCFTA on the gender gap at all, and the only reference to women’s rights in table 3.5 relates to women’s capacity to become engaged in the process of negotiating and implementing the trade agreement (ibid: 77). Other elements of human rights analysis are left out. For example, the TSIA does not treat access to remedies in any detail, yet access to remedies can be important as a means to resolve and even avoid negative impacts of trade agreements. The analysis dismisses some impacts too quickly. For example, the TSIA dismisses potential effects on human rights of stronger dispute settlement under the DCFTA, indicating that the DCFTA and human rights law ‘seem’ to work in the same direction without providing any explanation of such a highly controversial statement (ECORYS 2013b: 76). Such a conclusion ignores the fact that the role of—and potential risks to—human rights in trade and investment dispute settlement has attracted significant commentary for some years (Pauwelyn 2005; Marceau 2002). Similarly, the analysis indicates that increased competition due to the DCFTA might lead to the erosion of labour standards, particularly affecting vulnerable groups. Labour mobility and increases in labour might mitigate these effects in the long term, although those already marginalized due to skill sets, age, personal circumstances or location might suffer (ECORYS 2013b: 74). This analysis raises alarm bells from a human rights perspective, but the likely impact is dismissed as likely to be ‘small’. Given the alarming nature of the suggested impact, the analysis should have explained in greater detail the potential impacts on vulnerable groups, the impact this might have on inequality and discrimination in society, whether the likely impact was ‘small’ at the national level but potentially significant at the community level, and so on. The compartmentalization of the human rights analysis into one chapter tends to miss human rights dimensions of other aspects of the assessment. For example, the discussion on water scarcity and quality focuses primarily on impacts related to agriculture and industry (ECORYS 2013c: 177–87). Yet water scarcity and quality also affect drinking water and are crucial aspects of the right to water and which therefore warrant further analysis under the chapter on water (UN Committee on Economic, Social and Cultural Rights 2002: paras 2, 6). The analysis explicitly avoids examining impacts on the population’s access to drinking water as these impacts are considered to be less direct (ECORYS 2013c: 177). However, such indirect impacts are often the core part of human rights analysis. In this regard, it is interesting that the analysis does refer to the new Constitution’s recognition of a right to environmental protection and sustainable development as a potentially positive influence on water quality and scarcity issues in Tunisia in the future (ibid: 183). Yet the potential positive impact of the recognition of this right is not explained either. Consequently, a two-track approach could be adopted to the human rights analysis, whereby a stand-alone chapter would contain the main human rights analysis but other chapters would reference human rights impacts identified through the economic, social or environmental analysis.1 Finally, the human rights-related conclusions in the Final Report are excessively brief and do not reflect the analysis. The analysis indicates a number of areas where potential impacts, both positive and negative, could occur, such as in the areas of increased government revenue, impact on employment, labour displacement, and labour standards, the gender wage gap and increases in the poverty rate for the more vulnerable. Some of these impacts are qualified by highlighting the role of the government in choosing appropriate policies to promote human rights. Yet the overall conclusions in the Final Report devote only a short paragraph to human rights impacts, indicating impacts as likely to be positive but small (ECORYS 2013c: 190). This short conclusion does not do justice to the analysis, contradicts previous statements suggesting potential negative impact, and ignores previous statements that highlight the role of government in ensuring pro-human rights policies in the context of trade. Are relevant human rights recommendations identified? At a general level, the overall approach to formulating recommendations differs from that proposed by a human rights methodology. Recommendations take the form of enhancing, mitigating or preventing measures, which might be of a legal or economic nature, to realize the optimal outcome of the DCFTA (ECORYS 2013c: 195). While a human rights methodology would normally prioritize preventive measures, particularly where negative human rights impacts are identified, the TSIA provides no hierarchy among enhancing, mitigating or preventing measures. As part of the process of making recommendations, the TSIA checks whether these measures create trade burdens or trade distortions, and if they do, whether the burden or distortion is justified. A human rights methodology would not take for granted the existence of an eventual trade agreement and would never subject recommendations to a trade compatibility test which would suggest primacy of trade over human rights. Instead, an HRIA would identify recommendations best suited to improving the human rights situation. In spite of the conclusion that impacts on human rights are likely to be ‘small but positive’, the TSIA does include some human rights-related proposals. Specifically, the TSIA recommends that domestic labour standards should approximate EU acquis in the field, human rights treaties focusing on vulnerable groups should be effectively implemented, human rights and social monitoring mechanisms of the DCFTA should be considered, and social dialogue should be promoted. Specifically in relation to the textile, clothing and leather sector, corporate social responsibility and monitoring of social effects are recommended (ECORYS 2013c: 199–200, 203). There are no recommendations which suggest any specific provisions in the body of the future DCFTA to protect human rights. There is no recommendation to encourage the monitoring of the conclusions of the TSIA at a specific time in the future although the proposed monitoring mechanisms proposed for the DCFTA would at least partially have the effect of doing that. The recommendations are directed towards the European Commission as the entity requesting the impact assessment. However, from a human rights perspective, it might also have been relevant to include recommendations directed towards the Tunisian government, given that the TSIA focused on human rights in that country. In its 2015 position paper in response to the TSIA, the European Commission indicates that a future DCFTA should include a comprehensive Trade and Sustainable Development chapter reiterating commitment to labour standards and promoting ratification of other conventions. The European Commission supports the inclusion in the DCFTA of a mechanism to monitor the agreement (although without reference to human rights monitoring), including dialogue with civil society and social partners and possible involvement of independent experts (European Commission 2014: 8–9). The Commission also highlighted technical cooperation programmes that would help put in practice some of the recommendations (ibid: 9). While these recommendations and the European Commission’s response are relevant to human rights, they are very general and do not identify responsible actors or steps to elaborate recommendations. The European Commission’s response refers principally to existing technical cooperation projects which do not have any apparent link or relevance to protecting rights in the context of the implementation of a future trade agreement. The monitoring mechanism is the most significant proposal, but as the mandate and framework of such a mechanism is not explained, its potential relevance to human rights is unclear. It is noteworthy that recent studies reviewing such mechanisms in other EU trade agreements suggest that such mechanisms are generally ineffective (Harrison et al. n.d.). Overall, the Commission’s response, at least in relation to any human rights-related recommendations, suggests that the results of the TSIA will not change current practice. The reader is left with a sense of great reluctance on behalf of the consultants and the European Commission to propose, receive or act upon genuine recommendations that could change the shape of the negotiations. Does the trade and sustainability impact assessment measure the extent to which the negotiation process respects human rights principles? The TSIA focused on the impact of the future agreement with few references to the negotiation process, and in particular without assessing the extent to which the negotiation process itself respects human rights. In spite of this, the inclusion of human rights analysis in the TSIA could be a signal that the negotiation process could take into account human rights and other considerations, given that the TSIA is intended to inform negotiations and the decision-making process of the DCFTA (European Commission 2012: 15). Importantly, one recommendation in the Final Report encourages the involvement of stakeholders in the DCFTA process (ECORYS 2013c: 197). As a sign in this direction, the European Commission commits, in its response to the TSIA, to engaging civil society in the negotiation process (European Commission 2014: 9). While the European Commission has been criticized in the past for not integrating the results of TSIAs into the negotiations (Bürgi Bonanomi 2014: 22), it is relevant to note that the Commission has recently made the texts setting out the proposals for the negotiations available on its website and again committed to ensuring civil society participation in the negotiations (European Commission 2016). Nonetheless, the TSIA could have included some specific discussion of the negotiations as an explicit part of the assessment report. Similarly, including trade negotiators in the assessment process—for example, in public meetings related to the TSIA—could help strengthen the link between the TSIA, its results and the future negotiations. Does the trade and sustainability impact assessment itself respect human rights principles, particularly participation? The TSIA includes consultation and participation throughout. The invitation to tender contains a requirement for expertise in the assessment team on consultation and networking activities and requires the consultants to complement qualitative and quantitative analysis with inputs from stakeholders through a range of meetings and through document dissemination (European Commission 2012: 20–25, 37). At its inception stage, the TSIA set out a consultation plan which includes an analysis of the risks to stakeholder engagement and ways to mitigate those risks and lists some 260 EU and Tunisian governmental and civil society stakeholders to be consulted (ECORYS 2013a: 35–41). The consultation plan is updated throughout the process of the TSIA (ECORYS 2013b: 103–5). The Final Report summarizes the consultation process and provides an overview of the results (ECORYS 2013c: 109–15). Consultation and participation activities took place in both Brussels and in Tunisia. Two public meetings were held in Brussels, at the beginning and the end of the TSIA process, and a validation workshop was held in Tunisia prior to choosing the four sectors subject to deeper assessment with a view to receiving stakeholders’ input into the choice of those sectors. On information available, participants in these meetings were predominantly commercial entities although representatives of human rights organizations and the European Economic and Social Committee attended (European Commission 2013). However, the Tunisian workshop was a stand-alone event so did not provide an opportunity for participants to review results and analyse them further in order to provide more comprehensive input at a later date (for example, at a second consultation). Apart from official meetings, a dedicated website and Facebook page were created to disseminate information about the TSIA and the negotiations and to facilitate consultation and validation of the findings. Personal interviews were included on a selective basis and a survey of small and medium enterprises (SME) and a household survey were undertaken. In addition, the TSIA consultants attended relevant meetings held by stakeholders on related issues as a means of reaching a wider audience and also for disseminating findings of the study (ECORYS 2013a: 38–9). As noted above, the negotiators of the future DCFTA do not appear to have been included in the consultation and participation process. While considerable efforts were placed in promoting consultation and participation in the TSIA, stand-alone HRIAs have gone further. For example, in an ex ante HRIA of the impact of the strengthening of protection for plant breeders (UPOV 91) on the right to food, in addition to interviews with key informants, assessors undertook community consultations over a six-month period with small-scale farmers, women farmers, indigenous peoples and marginalized households, supplemented by key information interviews and focus group discussions with farmers using livelihood mapping, seasonal calendars, historical transects, matrix ranking and flow diagrams, supplemented by household case studies including female-headed households (Braunschweig et al. 2014: 17–20). The consultation and participation process raised a series of proposals including recommendations related to the TSIA methodology (such as suggestions for literature reviews and questions on the methods used for consultation), suggestions of focus areas for the TSIA (investment, services involving the movement of persons, inclusion of land ownership issues, employment, regional development, water security, negative social impact and need for support in the area of social security) and indications of possible impact of the DCFTA (negative social effects and the need for social security support) (ECORYS 2013c: 111). However, the most detailed results of the consultation process came from the SME survey. The household survey disaggregated data by sex, age, education levels, regional type and geographical region (ibid: 63); however, there is no indication that in-depth consultation or participatory studies were undertaken in relation to individuals and groups, particularly those who were marginalized or vulnerable. The TSIA includes a recommendation to involve relevant stakeholders in the DCFTA process in order to achieve implementation of preventive and mitigating recommendations and to enhance social development and to involve civil society in monitoring the trade agreement (ECORYS 2013c: 197). As noted above, the European Commission accepted this and made an undertaking to involve social partners, associations, NGOs, academics, political partners and others in the preparation for and negotiation of the DCFTA and also accepted the recommendation to establish a monitoring mechanism for the future DCFTA, which would include dialogue with civil society representatives (European Commission 2014: 9). While the consultation and participation process is well developed, the process for including the results in the conclusions and recommendations is not. The results of the consultation process are referred to in the chapter on recommendations; however, references are few and relate to the results of the SME survey rather than consultations with individuals and groups or human rights organizations as such (ECORYS 2013c: 199). The TSIA does not explain how the results of the qualitative analysis are systematically reconciled with the quantitative analysis and there appears to be significant reliance on the results of economic modelling in making conclusions and recommendations. Moreover, there does not appear to have been consultation around the development of recommendations listed in the Final Report (ibid: 195). Overall human rights evaluation of the trade and sustainability impact assessment The TSIA complies with many of the formal aspects of an HRIA methodology. Human rights appear explicitly among the objectives of the TSIA and the assessment is grounded in human rights norms and standards. A baseline study provides a comprehensive overview of the human rights situation in Tunisia, although not in the EU, and the study relies significantly on reliable information from UN and regional human rights mechanisms. The TSIA covers all rights—civil and political and economic, social and cultural rights—and also identifies those individuals and groups most vulnerable to changes in trade rules, as well as those actors that are responsible for guaranteeing human rights in the context of trade. In addition, the TSIA identifies a comprehensive range of potential human rights impacts and analyses their significance according to rights-based significance criteria. The assessment techniques include a range of qualitative and quantitative methods and the TSIA promotes broad consultation and participation of various stakeholders throughout the TSIA process. However, in practice, the TSIA is far from meeting the requirements of an HRIA methodology, and the TSIA methodology needs considerable strengthening. Most importantly, the human rights analysis should be deeper and more detailed. The three steps actually used—baseline study, identification of relevant rights, and identification of relevant impacts and their significance—are insufficient to explain in detail the complex relationships between trade and human rights. A screening step that examines all the crucial areas of trade agreements more likely to affect human rights and the human rights most likely to be affected should be added after the baseline study and used to narrow the investigation at an early stage. As a result, a limited number of trade sectors or issues—such as intellectual property protection or agricultural trade—could be identified and then explored in much greater depth. The results of the analysis should be presented in narrative form—and possibly through diagrams. Using causal chain analysis and possibly other assessment techniques, including participatory techniques, the chain of effects from introduction of a trade measure to potential impact on particular rights should be set out, including also explanations of alternative factors that might exacerbate, mitigate or explain this impact. This analysis should refer explicitly to the government actors responsible for avoiding negative impacts and provide an indication of their capacity to do so. Another factor that could strengthen the human rights analysis is the systematization of human rights indicators. The framework of structural, process and outcome indicators developed by the UN Office of the High Commissioner for Human Rights (OHCHR) provides a useful starting point to identify relevant indicators. However, this framework must be adapted to the particular HRIA in question, as no standard set of indicators for HRIAs has been devised, or indeed is able to be devised. Whatever indicators are chosen, care should be exercised to make sure that the indicators are used consistently across the assessment. Thus, if the outcome indicator of access of marginalized girls to education is used in the baseline study, then the same indicator should be referred to during later stages of the analysis. In this way, it will be possible to trace the impact of the trade agreement on the indicator by comparing the scenario without the trade agreement with the scenario with the trade agreement. In addition, a two-track approach to human rights analysis would help ensure the most comprehensive review of potential impacts. In other words, while a stand-alone chapter on human rights impacts should help identify the main human rights impacts, it is relevant to identify human rights aspects in other parts of the analysis, in particular chapters on social and environmental impacts. Impacts on employment might lead to human rights concerns where there is an ineffective system of social security in place, while increases in emissions might have health consequences, and potentially right to health impacts, where, for example there is unequal access to health care. In highlighting these possible human rights impacts, the TSIA might provide insights which could require changes to the negotiations or lead to more in-depth HRIAs on particular issues. The clarification of the causal chain of effects between introduction of a trade measure and enjoyment of a particular right as proposed should help to sharpen conclusions and ensure that they reflect the analysis. In the EU–Tunisia TSIA, much of the human rights analysis was lost in the conclusions, where human rights impacts were summarized as likely to be ‘small but positive’. Not only did this summary fail to reflect the previous analysis, it could also be misleading and ultimately cover up potential risks that could be avoided. While human rights-related recommendations were included in the Final Report, the link between the recommendations and the conclusions on human rights impact were unclear. In this regard, it is relevant to note that the European Commission ‘Guidelines on analysing human rights impacts in impact assessments for trade-related policy initiatives’, which post-date the EU–Tunisia TSIA, propose the use of a table indicating the human right and how the right might be affected positively, negatively or neutrally—illustrated through the use of ‘–’, ‘0’ or ‘+’—in relation to three different trade negotiation options (European Commission 2015: 12). So long as such a table is accompanied by an explanatory narrative, this could be useful for ensuring that the link between the trade measure under discussion, its impact on rights and the proposed recommendation is sufficiently clear. Another area for strengthening is the approach to consultation and participation. The TSIA demonstrated a significant and transparent consultation and participation process which should have increased knowledge around the negotiations of the DCFTA and has led to commitments to encourage participation around the negotiation and implementation of the DCFTA by the European Commission. In spite of many positive aspects, the TSIA does not meet the relatively high demands of participation when viewed from a human rights perspective. There appears to be greater emphasis placed on consultation and participation of economic actors, such as SMEs, rather than human rights organizations and individuals and groups whose rights might be affected by the introduction of the DCFTA. The analysis, conclusions and recommendations should be more explicit in explaining the weight given to qualitative and quantitative data as there appears to be significant reliance on quantitative analysis, particularly from the economic modelling, and little influence of the results of the qualitative data gained through consultation and participation. Affected individuals and representative organizations should have an opportunity to have input into the recommendations from the assessment if participation and consultation is to be meaningful. A key factor to improve the HRIA methodology is to ensure that the assessment team benefits from qualified and experienced human rights professionals. While the invitation to tender requires human rights expertise, ECORYS appears, from its website, not to have any significant human rights focus and there is no indication in the report whether the assessment team benefited from specific human rights expertise. One solution could be to tender separately for human rights consultants given the specific nature of the analysis. These shortfalls in the approach to consultation and participation might be a result of the comprehensive nature of the TSIA. The geographical scope of the TSIA and its broad coverage of economic, social, human rights and environmental issues might mean that community level participatory techniques expected from a human rights approach might be particularly onerous. These techniques require significant resources and expertise and might not provide the sort of information needed to support conclusions on impact that can be nationally relevant. However, without a much deeper level of consultation and participation with individuals and communities, it is difficult to recognize an HRIA methodology in the real sense of the term. Much greater emphasis needs to be placed on consulting with individuals and communities and human rights organizations, presenting the results of these consultations and explaining how they affect the conclusions and recommendations. Now that there are increasing examples of completed TSIAs including elements of consultation and participation, a review of the consultation and participation processes of TSIAs would be timely. Such a review could examine the extent of participation, the extent to which it influenced the findings of the TSIAs, the extent to which it influenced the trade negotiations, as well as the extent to which it raised awareness of the trade agreement and led to wider engagement of stakeholders in the trade negotiations and trade processes more generally. The review could take into account the different demands placed on integrated and stand-alone HRIAs and help devise a methodology to ensure adequate participation and consultation that can be adapted to different types of HRIA. A relevant factor to bear in mind in making this evaluation is that human rights methodologies have been developed principally for stand-alone HRIAs rather than IAs that integrate human rights analysis along with other economic, social or environmental impact assessment. This necessarily affects the extent to which the human rights methodology is followed. For integrated assessments, the fact that a human rights methodology is combined with other impact assessment methodologies means that some aspects of the HRIA methodology such as participation might simply be too complex to undertake without using up time, focus and resources necessary for the wider analysis. However, this should not deny the importance and relevance of the integrated approach. Indeed, the inclusion of human rights in broader TSIA assessments of trade agreements has several positive effects. Importantly, the TSIA helps to situate human rights impacts in a broader context of economic, environmental and social impacts, providing a fuller picture of the potential impact of the DCFTA. In addition, the analysis of other impacts, particularly economic impacts, provides key information to understand human rights impacts. Understanding these economic impacts is at times a precondition to understanding human rights impacts, so in this sense, the TSIA does a lot of the initial analysis necessary for the human rights analysis. Ultimately, it is important not to see this as a choice between a stand-alone HRIA and a broader IA that includes human rights analysis. Instead, broader IAs should be seen as initial research that could support a more focused HRIA. Given that the TSIA indicates certain disproportionate impacts on people in vulnerable or marginalized situations and raises concerns about pressure on respect for labour standards due to increased competition, the TSIA provides the basis to launch HRIAs into these specific areas. This iterative approach is in keeping with impact assessment methodologies which generally adopt a sequenced approach that deepens analysis over time. Conclusions The inclusion of human rights assessment in the European Commission’s TSIAs has great potential. It offers an avenue to respond to concerns from civil society that they have been excluded from the process of trade negotiations, including impact assessment, and it provides the opportunity to expand HRIA practice in the field of trade. This in turn should help explain and legitimize processes around globalization and also to contribute to the professionalization of HRIA and the refinement of HRIA methodologies with the benefit of practice. This article is an attempt to contribute to the professionalization of HRIAs by critically reviewing one recent integrated IA. The TSIA demonstrated significant formal respect for HRIA methodologies but failed to engage substantively with human rights. Consequently, critical elements, most importantly the human rights analysis and the recommendations, need considerable strengthening while further research is needed into developing appropriate methodologies for human rights participation and consultation that can be adapted to the demands of particular HRIAs. The European Commission’s adoption of its Guidelines on the analysis of human rights impacts in impact assessments of trade-related policy initiatives in 2015 should help to strengthen the underlying methodology of TSIAs. A recent study after the adoption of the Guidelines indicates some improvements, including more demanding terms of reference from a human rights perspective, a clearer analysis of human rights impacts comparing the situation before and after adoption of an agreement, and stronger recommendations that propose provisions in the agreement that explicitly or implicitly protect human rights (Development Solutions 2015, 2016). In spite of these improvements, challenges remain. These include the need to clarify the indicator framework used to assess impact; the need for stronger capacity analysis of the impact of agreements on specific individuals’ enjoyment of their rights and duty bearers’ ability to meet their human rights obligations and to avoid negative impacts emerging; clearer causal chain analysis from introduction of new trade and investment provisions to the impact on the rights of particular individuals; and further improvements to the active participation of stakeholders in the assessment process. The continued review of TSIAs according to the methodology outlined in this paper will therefore be critical. With human rights now systematically integrated into TSIAs of the European Commission, the likelihood of other governmental and non-governmental actors undertaking HRIAs of trade agreements increases. Systematizing good HRIA practice at this stage should hopefully raise the bar for HRIAs and encourage a high quality standard as a guide for the future. Footnotes 1 The next section, ‘Overall human rights evaluation of the TSIA’ provides some more detail of what the two-track approach comprises. Acknowledgements I would like to thank Nora Götzmann, James Harrison and Susan Mathews for their very helpful comments on a previous draft. References Berne Declaration, Canadian Council for International Cooperation, and Misereor . 2010 . Human Rights Impact Assessment for Trade and Investment Agreements. Report of the Expert Seminar, Geneva, 23–24 June. Braunschweig T. , Meienberg F. , Pionetti C. . 2014 . Owning Seeds, Accessing Foods: A Human Rights Impact Assessment of UPOV 91, based on case studies in Peru, Kenya and the Philippines. The Berne Declaration. Bürgi Bonanomi E. 2014 . EU Trade Agreements and their Impacts on Human Rights. Centre for Development and Environment, University of Berne; Study Commissioned by the Federal Ministry of Economic Cooperation and Development. Council of the European Union . 2012 . EU Strategic Framework and Action Plan on Human Rights and Democracy. 11815/12. http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/131181.pdf (referenced 29 December 2016). Development Solutions . 2015 . Sustainability Impact Assessment in Support of an Investment Protection Agreement between the European Union and the Republic of the Union of Myanmar: Inception Report. Brussels: European Commission, Directorate-General for Trade. Development Solutions . 2016 . Sustainability Impact Assessment in support of an Investment Protection Agreement between the European Union and the Republic of the Union of Myanmar: Final Report. Brussels: European Commission, Directorate-General for Trade. ECORYS . 2013a . Trade and Sustainability Impact Assessment in support of negotiations of a DCFTA between the EU and Tunisia: Final Inception Report. Rotterdam: European Commission, Directorate-General for Trade. ECORYS . 2013b . Trade and Sustainability Impact Assessment in support of negotiations of a DCFTA between the EU and Tunisia: Final Interim Technical Report. Rotterdam: European Commission, Directorate-General for Trade. ECORYS . 2013c . Trade and Sustainability Impact Assessment in support of negotiations of a DCFTA between the EU and Tunisia: Final Report. Rotterdam: European Commission, Directorate-General for Trade. European Commission . 2012 . Invitation to Tender Related to a Framework Contract to provide Trade Sustainability Impact Assessments (Trade SIAs) in Support of the Negotiations to Upgrade the Euro-Mediterranean Association Agreements and to Establish a Deep and Comprehensive Free Trade Area (DCFTA) between the European Union and respectively Egypt, Jordan, Morocco and Tunisia. Letter from Ignacio Garcia Bercero, 27 July. European Commission . 2013 . Trade SIA in support of a Deep and Comprehensive Free Trade Agreement between the EU and respectively Morocco and Tunisia, Draft Inception Report. http://trade.ec.europa.eu/civilsoc/meetdetails.cfm?meet=11403 (referenced 13 January 2017). European Commission . 2014 . European Commission Services’ Position Paper on the Trade Sustainability Impact Assessment in Support of Negotiations of a Deep and Comprehensive Free Trade Agreement between the European Union and Tunisia. http://trade.ec.europa.eu/doclib/docs/2015/april/tradoc_153337.pdf (referenced 4 March 2016). European Commission . 2015 . Guidelines on the Analysis of Human Rights Impacts in Impact Assessments of Trade-Related Policy Initiatives. Directorate-General for Trade. http://trade.ec.europa.eu/doclib/docs/2015/july/tradoc_153591.pdf (referenced 27 December 2016). European Commission . 2016 . The Texts Proposed by the EU for a Deep and Comprehensive Free Trade Area (DCFTA) with Tunisia. 16 April. http://trade.ec.europa.eu/doclib/press/index.cfm?id=1490&serie=1106&langId=en (referenced 27 December 2016). Forman L. , MacNaughton G. . 2015 . Moving Theory into Practice: Human Rights Impact Assessment of Intellectual Property Rights in Trade Agreements . Journal of Human Rights Practice 7 ( 1 ): 109 – 38 . Google Scholar CrossRef Search ADS Harrison J. 2010 . Human Rights Impact Assessments of Trade Agreements: Reflections on Practice and Principles for Future Assessments. Paper presented at the Expert Seminar on Human Rights Impact Assessments of Trade and Investment Agreements, 23–24 June, Geneva. http://www.humanrights.ch/upload/pdf/100719_Background_paper.pdf (referenced 7 September 2016). Harrison J. 2011 . Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment . Journal of Human Rights Practice 3 ( 2 ): 162 – 87 . Google Scholar CrossRef Search ADS Harrison J. 2013 . Human Rights Impact Assessment of Trade Agreements: What is the State of the Art? Conference Paper, Vienna, 5 November. http://www.oefse.at/fileadmin/content/Downloads/Veranstaltungen/Tagungsdokus/James_Harrison_Trade_HRIA_paper_5_11_2013.pdf (referenced 23 December 2016). Harrison J. , Barbu M. , Campling L. , Richardson B. , Smith A. . No date. Governing Labour Standards through Free Trade Agreements: Limits of the European Union’s Trade and Sustainable Development Chapters. Forthcoming, copy available from author. Marceau G. 2002 . WTO Dispute Settlement and Human Rights . European Journal of International Law 13 ( 4 ): 753 – 814 . Google Scholar CrossRef Search ADS Paasch A. , Chemnitz C. , Sengupta R. , Ramdas S. et al. 2011 . Right to Food Impact assessment of the EU–India Trade Agreement. Misereor, Heinrich Böll Stiftung, Third World Network, Anthra, Glopolis, Ecofair Trade Dialogue. http://www.ecofair-trade.org/content/study-right-food-impact-assessment-eu-india-trade-agreement (referenced 20 September 2016). Pauwelyn J. 2005 . Human Rights in WTO Dispute Settlement. In Cottier T. , Pauwelyn J. , Bürgi E. , Human Rights and International Trade . Oxford University Press . Google Scholar CrossRef Search ADS UN Committee on Economic, Social and Cultural Rights . 2002 . The Right to Water: Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights: General Comment 15. E/C.12/2002/11. UN Human Rights Council . 2011 . Guiding Principles on Human Rights Impact Assessments of Trade and Investment Agreements. Report of the Special Rapporteur on the Right to Food, Olivier de Schutter. A/HRC/19/59/Add.5. UN OHCHR (Office of the High Commissioner for Human Rights) . 2012 . Human Rights Indicators: A Guide to Measurement and Implementation. H/PUB/12/5 . Geneva and New York : United Nations . Walker S. 2009 . The Future of Human Rights Impact Assessments of Trade Agreements . Brussels : Intersentia . Walker S. 2011 . The United States–Dominican Republic–Central American Free Trade Agreement and Access to Medicines in Costa Rica: A Human Rights Impact Assessment . Journal of Human Rights Practice 3 ( 2 ): 188 – 213 . Google Scholar CrossRef Search ADS © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Human Rights Practice Oxford University Press

Human Rights in the Trade and Sustainability Impact Assessment of the EU–Tunisia Free Trade Agreement

Loading next page...
 
/lp/ou_press/human-rights-in-the-trade-and-sustainability-impact-assessment-of-the-IaIijPafF7
Publisher
Oxford University Press
Copyright
© The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com
ISSN
1757-9619
eISSN
1757-9627
D.O.I.
10.1093/jhuman/huy007
Publisher site
See Article on Publisher Site

Abstract

Abstract This article critically examines the integration of human rights in the trade and sustainability impact assessment of the proposed Deep and Comprehensive Free Trade Agreement between the EU and Tunisia. The main contribution of this article is to list the basic requirements of a human rights impact assessment methodology in the form of a list of questions as a means to evaluate impact assessments of trade agreements. Using this list, the article demonstrates how the EU–Tunisia assessment meets many of the formal requirements of human rights impact assessment but that the underlying human rights analysis and recommendations were weak and that the approach to consultation and participation of individuals and groups in the assessment process needs review and strengthening. The article recommends the continued professionalization of human rights impact assessment of trade agreements and concludes by noting that the 2015 adoption by the European Commission of Guidelines on the analysis of human rights impacts in impact assessments of trade-related policy initiatives provides a clearer framework to guide and improve future assessments. Introduction Experience in the area of human rights impact assessments (HRIAs) of trade agreements has grown considerably over the last 15 years. The development of methodologies and the commissioning of HRIAs have not only helped understand the impacts of trade agreements but also demonstrate the benefits and challenges of HRIAs. Today, two types of HRIAs of trade agreements dominate: the first examines impacts of trade agreements principally on the enjoyment of human rights (stand-alone HRIAs); the second examines human rights impacts of trade agreements along with other impacts, including economic, environmental and social impacts (integrated IAs). The European Commission’s Trade and Sustainability Impact Assessments (TSIAs) fall into the latter category of integrated IAs and provide the largest pool of HRIAs of trade agreements. Initial TSIAs did not include human rights analysis. However, in 2012 the Council of the European Union decided that all impact assessments would include a human rights component, including impact assessments of trade agreements (Council of the European Union 2012). From then until December 2016, the European Commission has finalized ten TSIAs that include human rights analysis and the Commission has developed guidelines as a means of systematizing the integration of human rights into trade and sustainability impact assessments (European Commission 2015). Whether stand-alone or integrated, HRIAs should meet the basic expectations of a human rights methodology. Several examples and guidelines of HRIA methodologies of trade agreements already exist (UN Human Rights Council 2011; Harrison 2010; Walker 2009, 2011; Forman and MacNaughton 2015; Bürgi Bonanomi 2014; Paasch et al. 2011; Berne Declaration et al. 2010; Braunschweig et al. 2014; European Commission 2015). There is common agreement that IAs should examine potential or past impacts of the trade agreement on human rights, but should also examine whether the trade negotiations respect human rights principles of non-discrimination, participation and transparency, and accountability. Moreover, the impact assessment methodology itself should respect human rights, such as using participatory impact assessment methods and ensuring transparency in undertaking the impact assessment. The purpose of this article is to examine how trade TSIA practice is meeting the basic expectations of an HRIA methodology. This responds to calls for a greater professionalization of human rights impact assessments and better understanding of the key elements of HRIA (Harrison 2013; Walker 2011). To do so, the article considers one TSIA—the TSIA related to the Deep and Comprehensive Free Trade Agreement (DCFTA) between the EU and Tunisia, which was commissioned in 2012 and finalized in 2015 with the publication of the European Commission’s response to the TSIA’s recommendations. The decision to look at only one TSIA was based on the need to do a close reading of the methodology as it concerns human rights. This provides the basis for a more comprehensive review of all TSIAs incorporating human rights impact assessment which could examine an evolution in practice over time. The Tunisia TSIA was chosen as the focus as one of the more recent TSIAs at the initial stages of drafting this article. It was also chosen given the complex human rights challenges the country has experienced in the past. The presence of such significant human rights challenges, and the current transition towards the rule of law that affects many aspects of Tunisian society, highlight the importance of considering the human rights context and impact of important decisions, such as the negotiation of a trade agreement. Not only might the future trade agreement affect human rights but the fragile human rights context might also affect the implementation of the trade agreement. Since the finalization of the Tunisia TSIA, the European Commission has adopted Guidelines on the Analysis of Human Rights Impacts in Impact Assessments of Trade-Related Policy Initiatives in 2015 (European Commission 2015) and consultants have begun to refine the human rights analysis of a recent TSIA. Once sufficient practice is available on TSIAs in light of the Guidelines, the methodology identified in this article can be used to review these subsequent assessments. The article builds on other work in this journal examining human rights impact assessment (Harrison 2011; Walker 2011; Forman and MacNaughton 2015). In examining a rights-based approach to impact assessment, the article appeals not only to those interested in impact assessment but also to a broader audience interested in rights-based approaches, as the analysis also applies to other areas of development and economic activity. The trade and sustainability impact assessment of the EU–Tunisia Deep and Comprehensive Free Trade Agreement In 2011, in the context of the Arab Spring, the European Union began considering the negotiation of Deep and Comprehensive Free Trade Agreements with selected Southern Mediterranean partners, one of which was Tunisia. With a view to informing the negotiations of the economic, social and environmental impact of such agreements and as a result of requirements by the Council of the European Union, the European Commission undertook ex ante Trade and Sustainability Impact Assessments (TSIA) of the affected countries. To do so, the Commission engaged ECORYS, an independent consultancy undertaking research, consultancy and management services. The TSIA related to the EU and Tunisia negotiations was undertaken in 2013 (ECORYS 2013c). The first round of trade negotiations took place in April 2016 (European Commission web page on Tunisia, http://ec.europa.eu/trade/policy/countries-and-regions/countries/tunisia, referenced 27 December 2016). The objective of the TSIA was to assess the economic, social, human rights and environmental impact of a future DCFTA in both the EU and in Tunisia with a view to proposing trade and non-trade measures to maximize benefits and prevent or minimize potential negative impact (European Commission 2012: 15). The TSIA used a layered methodology. First of all, a preliminary screening and scoping of sectors identified the main trade-related sectors to be subject to the impact assessment. It should be noted that the TSIA was undertaken prior to the preparation of a negotiation text, so the TSIA’s starting point was not a potential agreement or trade provision but the current trade situation between the EU and Tunisia upon which negotiation scenarios were based. Next, the assessment analysed the likely economic, social, human rights and environmental impacts of these trade scenarios on the sectors identified through the preliminary screening. Then, a secondary screening narrowed and deepened the assessment’s focus on four specific areas: fruits, vegetables and nuts; textiles, leather and clothing; retail distribution; and water scarcity and quality (ECORYS 2013a: 15). The analysis consisted primarily of building two scenarios—a baseline scenario and a liberalization scenario—as inputs to a Computable General Equilibrium (CGE) model. On this basis, the assessment identified the main potential impacts of the DCFTA on income and wages. Subsequently, quantitative and qualitative social and environmental analysis complemented the results of the CGE model to arrive at an overall indication of the likely economic, social, human rights and environmental impacts of the DCFTA. The TSIA included a stakeholder consultation process in the form of meetings and workshops, surveys and interviews with key informants. The final report set out the conclusions of the TSIA and policy recommendations and proposals for accompanying measures designed to prevent or mitigate potentially negative impacts of a DCFTA (ECORYS 2013c). In 2015, the European Commission published a position paper on the TSIA setting out its response to the policy recommendations (European Commission 2014). The Commission generally took note of recommendations, took on board a minimum of recommendations, and set out why other recommendations could not be addressed directly in the DCFTA. Assessment of the human rights analysis of the trade and sustainability impact assessment A rights-based framework for impact assessment HRIAs of trade agreements share many of the same methodological aspects of other impact assessment methodologies in the environmental or social field, such as the step-by-step processes that structure the assessment and the qualitative and quantitative data collection and analysis techniques. What distinguishes an HRIA methodology from other impact assessment methodologies is its approach to the assessment process—often referred to as a rights-based approach. A rights-based approach to assessment can be understood as comprising the following interconnected elements (Walker 2009): The assessment should expressly link its analysis to norms and standards in human rights treaties and national laws. The assessment should examine the extent to which the trade agreement respects human rights during the negotiations. The assessment should itself respect human rights. In other words, the process underlying the assessment should promote popular participation and respect principles of non-discrimination, participation, transparency and accountability in its methodology. These three elements should then influence the various steps of the impact assessment methodology. The first step in the IA process is the preparation step where the objectives, terms of reference of the assessment and the context of the impact assessment are set. During the preparation stage for an HRIA, the assessors should: Identify measurement of impact on human rights among the objectives of the assessment and refer explicitly to human rights standards. Undertake a baseline study that identifies the human rights situation of the states that will be party to the future agreement, explicitly referring to their human rights treaty commitments and referring to reliable sources of human rights information. Identify a consultation and participation plan so that the assessment itself respects human rights principles of participation, transparency and non-discrimination. Ensure that the assessors undertaking the assessment are independent, have adequate funding and time and that the team includes someone with human rights expertise and expertise in participatory assessment techniques and stakeholder consultations. The screening step should identify those trade measures to be subject to the assessment by reference to their potential impact on human rights (not only their potential impact on growth). The screening stage should: Seek to identify the trade measures more likely to have an impact on human rights. Determine which human rights might be affected and the significance of the likely impact. While the screening step narrows the focus, the next step, the scoping step, should elaborate the different negotiating scenarios and the types of impacts to be subject to assessment. From a human rights perspective, the scoping step should: Elaborate the nature of the particular trade measure under assessment and identify sufficient trade negotiation scenarios so as to have a comprehensive understanding of how the trade agreement might affect human rights. Elaborate the theoretical human rights impacts to be assessed as well as the individuals and groups whose rights are more likely to be affected. Choose indicators that are capable of measuring human rights impact (Harrison 2010: 10). In order to understand in a comprehensive way the impact of trade on human rights, it is important to go beyond only outcome indicators—such as the number of individuals foregoing basic health care—and examine also structural indicators that demonstrate commitment to human rights (for example, ratification of treaties, existence of laws and policies) as well as process indicators that represent the effort placed by the state to respect, protect and fulfil human rights (for example, allocation of budgets to policies and strategies) (UN OHCHR 2012). Choose data collection and analysis methods (assessment techniques) that facilitate the collection of human rights relevant data, not only economic data. For an HRIA, it is important to rely on both qualitative as well as quantitative data. The data collection and analysis step should collect relevant data, including data related to the enjoyment of the rights of individuals and groups, particularly the more vulnerable, and include statements on the likely short- and long-term impact of the trade agreement on individuals’ rights and on the obligations of the parties to the future agreement as recognized in human rights treaties and national human rights legislation. The data collection and analysis stage should also seek public participation as much as feasible and clearly reflect the results of participation in the analysis. Conclusions might indicate positive impact, no impact, or negative impact, and recommendations should propose options for the trade agreement that are most likely to have a positive impact on human rights. The final step in the HRIA process is monitoring and evaluation of the TSIA itself. HRIA methodologies highlight monitoring and evaluation, particularly where the IA identifies potential risks of human rights violations. In such cases, monitoring should ideally prevent violations occurring but also identify violations and help victims seek remedies if they occur. This section should also propose an ex post evaluation of the implementation of the trade agreement after a period of time. An important element of a rights-based approach to impact assessment is that the assessment itself should respect human rights principles. This highlights the need for active, free and meaningful participation of rights holders and duty bearers throughout the assessment and, as noted above, encourages the use of participatory assessment methodologies that address the concerns of both men and women and of the most vulnerable segments of the population. Participation goes beyond consultation and should seek to empower people by bringing them together, raising awareness of trade and ultimately engaging them in the negotiation process. Importantly, the assessment team should include someone with knowledge of participatory assessment techniques and stakeholder consultation so that participation does not simply become an adjunct of the HRIA but an integral part of its methodology. The rest of this section examines the extent to which the TSIA of the EU–Tunisia DCFTA respects a human rights methodology, considering the extent to which the TSIA analysis is grounded in human rights standards and principles and respects human rights principles in its own methodology. Is the assessment grounded in human rights standards and information? The objectives of the TSIA, as set out in the invitation to tender, state that the TSIA should assess how the provisions under negotiation affect economic, social, human rights and environmental issues in the EU and in Tunisia and should propose measures to maximize benefits and prevent or minimize potential negative impacts (European Commission 2012: 15). In doing so, the invitation to tender indicates that the analysis should take into account fundamental rights issues as set out in the Charter of Fundamental Rights of the European Union as well as UN conventions. The invitation to tender requires the identification of those rights to be affected by the DCFTA and ‘the degree of interference with the right(s) as well as the necessity and proportionality of the interference in terms of policy options and objectives’ (ibid: 17). Reflecting this, the TSIA is grounded in reliable sources of human rights information. In particular, the analysis expressly relies on standards in human rights treaties, whether ratified or not by Tunisia, as well as the status of implementation of ratified treaties (ECORYS 2013a: 30). Information sources include the results of reviews by the UN treaty bodies and universal periodic review, and NGO reports (ibid: 30–1). Were the trade and sustainability impact assessment experts sufficiently independent and knowledgeable about human rights? The TSIA should be independent, sufficiently funded and include adequate human rights expertise. In this regard, it is relevant to note that the European Commission began the process through public tender and the assessment team had to demonstrate that it comprised experts with experience in human rights (European Commission 2012: 37). The invitation to tender sets out a governance structure which includes a requirement to report periodically to the European Commission Steering Committee and to meet with other officials (European Commission 2012: 22). This governance structure has led to criticism of TSIAs in the past as a risk to the consultant’s independence—real or perceived (Bürgi Bonanomi 2014: 21). The tender was awarded to ECORYS, an independent consultancy firm based in the Netherlands. A review of the website of ECORYS indicates that the consultancy is independent although human rights are not listed as an area of expertise and only one project in its Corporate Brochure refers to a human rights project (http://www.ecorys.com, referenced 13 January 2017). Is there a comprehensive human rights baseline study? The TSIA includes a comprehensive human rights baseline study which is set out in the Final Interim Technical Report (ECORYS 2013b: 60–70). The baseline study reviews the national legislative framework and the international treaties ratified by Tunisia, the cooperation with UN and regional human rights mechanisms, positive developments as well as challenges. A table sets out in detail the human rights issues in Tunisia. The table respects the indivisibility of rights and sets out the main civil and political rights issues in Tunisia—as well as the situation of enjoyment of economic, social and cultural rights. The baseline study also identifies the rights of specific individuals and groups (persons with disabilities, women, children, lesbian, gay, bisexual and transgender (LGBT), minority and indigenous and refugees and migrants) who might be in a marginalized situation and therefore potentially vulnerable to legal and policy changes arising from a trade agreement. In addition to identifying the rights of specific individuals, the baseline study identifies to some extent specific institutions in Tunisia responsible for meeting human rights obligations, such as the Minister of Justice, security forces and police, and a National Commission to Combat Trafficking in Persons (ECORYS 2013b: 63–4). Unlike the references to individuals and groups, responsible ministries and other governmental actors are referred to sporadically throughout the baseline study and are not grouped under a separate heading of ‘duty bearers’. Consequently, it is possible that the list of duty bearers is not comprehensive. In keeping with a rights-based approach, this comprehensive overview of the human rights situation in Tunisia goes beyond a neutral description of the context of the TSIA and includes both positive and negative aspects. For example, the baseline study indicates challenges in relation to reforms of the judiciary, independence of the media, freedom of expression, criminal investigations, torture and employment (ECORYS 2013b: 62). Implicit in this analysis is that these factors could affect how changes in trade rules and policies might in turn affect human rights. In spite of the objectives of the TSIA including both the EU and Tunisia in its scope and the introduction of the human rights analysis section referring to examination of the effects of the DCFTA on people in the ‘two blocks’, namely Tunisia and the EU, there is no baseline study of human rights in the EU and the TSIA does not analyse human rights impacts in the EU at any step in the assessment. Are appropriate significance criteria used for screening trade measures subject to assessment? The TSIA relies on five criteria for the screening of trade measures, namely initial importance for the economy; expected economic impact of the trade agreement; social, human rights and environmental impact; stakeholder issues of special importance; and strategic importance of the sector/issue in the negotiations (ECORYS 2013a: 43; 2013b: 107). Thus, potential human rights impact is included within the screening criteria, in keeping with the requirements of a human rights methodology. In addition, as part of the human rights analysis, the TSIA relies on significance criteria to analyse the human rights impact of the DCFTA. Specifically, these are: human rights stress; direction of change compared to the baseline; nature, magnitude, geographical extent, duration; and the reversibility of expected changes (ECORYS 2013b: 73). These latter significance criteria therefore mirror those criteria identified in other HRIA methodologies (Walker 2009: 93). Are the trade measures under assessment the most relevant to understand their impact on human rights? The invitation to tender suggests some possible areas for focus of the TSIA, including agriculture, industrial products, business services, post, transport and telecommunications (European Commission 2012: 19–20). Subsequently, the preliminary screening step identifies the main issues to focus attention and resources at an early stage (ECORYS 2013a: 44), resulting in the identification of a range of sectors for inclusion in the assessment (ibid: 43–8). The screening is further refined after the initial economic, social, human rights and environmental analysis through a second screening phase to focus on vegetables, fruit and nuts; textiles, leather and clothing; retail distribution; and water scarcity and quality (ECORYS 2013b: 107–16). As noted above, the significance criteria to screen sectors included potential impact on social and human rights (ECORYS 2013a: 43–4). However, in practice, potential impact on human rights was not actively employed as a criterion (ECORYS 2013b: 112). General human rights analysis of trade agreements has identified a range of trade sectors which are more likely to affect the enjoyment of human rights. These include agricultural trade, services, the regulation of sanitary and phytosanitary measures (SPS), technical barriers to trade (TBT), as well as government procurement, investment, intellectual property protection and dispute settlement (Walker 2009: 60–1). For example, the potential negative human rights impacts of trade-related intellectual property protection are stark, particularly on access to medicines, and have been the subject of previous HRIAs (Forman and MacNaughton 2015; Harrison 2013; Walker 2011). The TSIA screens in some of these trade sectors, such as agricultural trade. However, other areas of human rights concern are not explicitly treated, such as dispute resolution, or are screened out summarily, such as intellectual property protection and TBT/SPS, even though they were raised during the stakeholder consultation process (ECORYS 2013b: 114). Of course choices have to be made due to limited resources or time. However, the TSIA could explain those choices more clearly. While the screening in of water quality and scarcity is explained due to the pressure that the DCFTA will put on water resources, the corresponding exclusion of other horizontal issues (intellectual property, competition, SPS, TBT, land, corruption) are not. Reading the TSIA from a human rights perspective, there is an unexplained gap. Are sufficient trade negotiation scenarios identified? The TSIA relies on two scenarios: the likely outcomes of the negotiations and a baseline scenario of a continuation of recent trends in Tunisia (ECORYS 2013a: 15). This is in line with the general TSIA methodology and compatible with the HRIA methodology (UN Human Rights Council 2011: Guideline 7) although HRIA methodologies also envisage assessing a further scenario providing greater flexibility to the parties to the agreement, or scenarios permitting certain exceptions to trade rules. While the use of two scenarios—one with a DCFTA and one without—might be more efficient in terms of making a complex assessment more focused, it also reduces the ability to examine the impact of a variety of scenarios of trade measures with a view to adopting trade rules that have optimal impact on human rights. Are the assessment techniques appropriate for collecting and analysing human rights data? The assessment techniques mirror those indicated in the HRIA methodology. The terms of reference for the TSIA stipulate the need ‘to complement quantitative and qualitative analysis with inputs from stakeholders’ (European Commission 2012: 14). Methodologies include economic modelling, analysis of household-level quantitative data, as well as literature reviews, analysis of reports under international conventions, interviews with key informants and stakeholders, causal chain analysis and consultations (ECORYS 2013a: 10). The results of economic modelling play an important role in the overall analysis by indicating likely economic impacts such as national income and wages. These data are complemented with the analysis of household level data as well as other quantitative data (ECORYS 2013b: 21–2). The Inception Report sets out a consultation plan and the annex to the Inception Report sets out some 250 relevant stakeholders consulted, including European and Tunisian human rights organizations, and summarizes various inputs (ECORYS 2013a: 35–9, Annex A and E). Consultation techniques ranged from interviews, workshops, public meetings, a dedicated website and email address as a means of disseminating information and communicating with stakeholders (ibid: 38–9). The quantitative and qualitative data were analysed through causal chain analysis so that relevant cause–effect links between trade measures and impacts are made explicit (ECORYS 2013b: 23). Are appropriate human rights indicators identified to guide measurement? The human rights indicators relied upon by the TSIA are generally implicit in the analysis. They do not appear in a table dedicated to indicators and they are not categorized as outcome, process and structural indicators. For example, in the baseline study, the TSIA notes that ‘[o]ne of the most positive steps made is the ratification of several key international human rights treaties and their protocols’ (ECORYS 2013b: 61). This is a structural human rights indicator although it is not explicitly referred to as such. Similarly, the TSIA identifies indicators such as the ‘gender gap’—an outcome indicator for the enjoyment of women’s rights—and the education budget—a process indicator for the right to education (ibid: 71, 72). Later on at the analysis stage, the TSIA similarly embeds the indicators in its narrative—for example, referring to the indicator of ‘government revenue’ when noting that the DCFTA will have an unclear impact on government revenue, including for education (ibid: 75). In not identifying an explicit set of human rights indicators, it becomes difficult to identify the indicators underlying the measurement of potential human rights impact, which in turn makes the analysis opaque and disconnected. Is the human rights analysis comprehensive? The TSIA identifies the human rights impacts subject to the TSIA in two phases. First of all, relying on the baseline study, the TSIA identifies those human rights most likely to be affected by the DCFTA (ECORYS 2013b: 70). This is done through the use of a table (table 3.4 in the Final Interim Technical Report) which identifies the rights from the baseline study in one column, the short description of the potential link to the DCFTA in the second column, and then the third column completes the screening using a ‘Yes/No’ format indicating whether the particular right would be affected by the DCFTA or not. So, for example, the table in the Report indicates that the DCFTA is unlikely to affect freedom of expression and the media and is therefore screened out with a ‘No’ (although the accompanying text also suggests that the DCFTA could strengthen civil society without explaining how), while regulatory approximation as part of the DCFTA and the application of the EU sanitary and phytosanitary standards in Tunisia could affect health conditions and so the right to health is screened with a ‘Yes’. Table 1 provides an illustration of part of that table. Table 1. Illustration of part of the table used in the TSIA to identify rights most likely to be affected by the DCFTA Human rights issue Why relevant for DCFTA? Affected by DCFTA? Right to health Regulatory approximation as part of the DCFTA will result in the application of EU SPS (including food safety) standards in Tunisathis will affect health conditions. Also, budgetary consequences of the DCFTA could affect funding availability for hospitals and other health-related public services. Yes Human rights issue Why relevant for DCFTA? Affected by DCFTA? Right to health Regulatory approximation as part of the DCFTA will result in the application of EU SPS (including food safety) standards in Tunisathis will affect health conditions. Also, budgetary consequences of the DCFTA could affect funding availability for hospitals and other health-related public services. Yes Table 1. Illustration of part of the table used in the TSIA to identify rights most likely to be affected by the DCFTA Human rights issue Why relevant for DCFTA? Affected by DCFTA? Right to health Regulatory approximation as part of the DCFTA will result in the application of EU SPS (including food safety) standards in Tunisathis will affect health conditions. Also, budgetary consequences of the DCFTA could affect funding availability for hospitals and other health-related public services. Yes Human rights issue Why relevant for DCFTA? Affected by DCFTA? Right to health Regulatory approximation as part of the DCFTA will result in the application of EU SPS (including food safety) standards in Tunisathis will affect health conditions. Also, budgetary consequences of the DCFTA could affect funding availability for hospitals and other health-related public services. Yes Once the relevant rights are screened, the TSIA identifies the potential human rights impacts (ECORYS 2013b: 73). To do so, the TSIA adopts a typology of generic human rights impacts of trade agreements (Walker 2009: 61–86). These generic impacts include potential positive impacts—for example, trade agreements promote growth and resources for the realization of human rights—as well as potential negative impacts—for example, trade agreements can limit government capacity to promote human rights. These are adapted to the analysis of the DCFTA again through the use of another table (ibid: table 3.5). The TSIA presents the generic human rights impact in a column, followed by a second column which sets out the potential human rights impacts of the DCFTA, while a third column indicates the significance of the impact, referring to the human rights stress, the direction of the change compared to the baseline as well as the nature, magnitude, geographical extent, duration and reversibility of expected changes. Finally, a row under each impact analysed sets out a conclusion as to the expected effect of the DCFTA. Table 2 provides an illustration of part of that table. Table 2. Illustration of part of the table used in the TSIA to identify most likely human rights impacts as a result of the DCFTA Categories of impact of DCFTA on human rights overall Potential human rights effects Significance Trade law complements human rights law The EU approaches FTAs as part of a constitutional, framework to support democracy, political stability and respect for human rights, hence the name DCFTA. This implies that human rights are also taken into account, alongside the pure trade-related provisions. In that sense we expect therefore a positive effect of the DCFTA on human rights. A small positive effect of the ‘DC’ element of the FTA is expected because of the constitutional framework the EC employs in these negotiations. The geographical extent runs across the country. The chance for reversibility of this change is low as it will be enshrined in the DCFTA as well as—in part—in Tunisian national law. Categories of impact of DCFTA on human rights overall Potential human rights effects Significance Trade law complements human rights law The EU approaches FTAs as part of a constitutional, framework to support democracy, political stability and respect for human rights, hence the name DCFTA. This implies that human rights are also taken into account, alongside the pure trade-related provisions. In that sense we expect therefore a positive effect of the DCFTA on human rights. A small positive effect of the ‘DC’ element of the FTA is expected because of the constitutional framework the EC employs in these negotiations. The geographical extent runs across the country. The chance for reversibility of this change is low as it will be enshrined in the DCFTA as well as—in part—in Tunisian national law. Expected effect: small positive effect of trade law on implementation of and adherence to human rights law— especially labour law where the DCFTA will enhance mechanisms to monitor and enforce. Table 2. Illustration of part of the table used in the TSIA to identify most likely human rights impacts as a result of the DCFTA Categories of impact of DCFTA on human rights overall Potential human rights effects Significance Trade law complements human rights law The EU approaches FTAs as part of a constitutional, framework to support democracy, political stability and respect for human rights, hence the name DCFTA. This implies that human rights are also taken into account, alongside the pure trade-related provisions. In that sense we expect therefore a positive effect of the DCFTA on human rights. A small positive effect of the ‘DC’ element of the FTA is expected because of the constitutional framework the EC employs in these negotiations. The geographical extent runs across the country. The chance for reversibility of this change is low as it will be enshrined in the DCFTA as well as—in part—in Tunisian national law. Categories of impact of DCFTA on human rights overall Potential human rights effects Significance Trade law complements human rights law The EU approaches FTAs as part of a constitutional, framework to support democracy, political stability and respect for human rights, hence the name DCFTA. This implies that human rights are also taken into account, alongside the pure trade-related provisions. In that sense we expect therefore a positive effect of the DCFTA on human rights. A small positive effect of the ‘DC’ element of the FTA is expected because of the constitutional framework the EC employs in these negotiations. The geographical extent runs across the country. The chance for reversibility of this change is low as it will be enshrined in the DCFTA as well as—in part—in Tunisian national law. Expected effect: small positive effect of trade law on implementation of and adherence to human rights law— especially labour law where the DCFTA will enhance mechanisms to monitor and enforce. An additional section is added specifically on the issue of child labour in Tunisia. The TSIA notes that there is evidence of child labour in Tunisia, and it identifies a series of factors such as parental illiteracy and poverty that lead to child labour. The potential impact of the TSIA is presented in a table comprising three columns, the first illustrating the causes of child labour, the second indicating the expected DCFTA impact, and the third setting out the direction and size of the impact. The TSIA concludes that if the government employs proper complementary measures, often referred to as flanking measures, such as domestic policies to promote education through spending additional tax revenues, then the DCFTA could have an effect of reducing child labour (ECORYS 2013b: 78). Table 3 provides an illustration of part of that table from the Final Report. The analysis provides some relevant human rights insights. For example, the TSIA indicates that government revenue might increase as a result of the DCFTA which might allow increases in health and education budgets and therefore the rights to education and to health, although this depends on the government’s policy choices (ECORYS 2013b: 75). The observation highlights the role of the government as duty bearer of the rights to health and to education and highlights its power to use the benefits of trade to fulfil human rights. However, the description of the impact is superficial and does not explain counter scenarios, for example, the impact on health and education if government revenue does not increase. Table 3. Illustration of part of the table used in the TSIA to examine the impact of DCFTA on child labour Expected DCFTA impact Direction and size of the effect If government spends its additional tax revenue on education and reducing illiteracy, this cause may be reduced to some extent Potential positive and significant effect of the DCFTA—as parents–children link is very strong Expected DCFTA impact Direction and size of the effect If government spends its additional tax revenue on education and reducing illiteracy, this cause may be reduced to some extent Potential positive and significant effect of the DCFTA—as parents–children link is very strong Table 3. Illustration of part of the table used in the TSIA to examine the impact of DCFTA on child labour Expected DCFTA impact Direction and size of the effect If government spends its additional tax revenue on education and reducing illiteracy, this cause may be reduced to some extent Potential positive and significant effect of the DCFTA—as parents–children link is very strong Expected DCFTA impact Direction and size of the effect If government spends its additional tax revenue on education and reducing illiteracy, this cause may be reduced to some extent Potential positive and significant effect of the DCFTA—as parents–children link is very strong The TSIA also highlights the potential for labour standards to come under pressure as a result of increased competition in the labour market, potentially affecting vulnerable groups disproportionately. The analysis indicates that the government has not ratified the individual complaints mechanism under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and that this could detract from a stronger legal environment to combat this race-to-the-bottom of labour standards (ECORYS 2013b: 76). On the one hand, this highlights the role of availability of remedies—in the form of individual complaints mechanisms at the international level—as a way to mitigate and avoid potentially negative impacts on rights. However, the analysis does not look at the more relevant issue of the types of remedies existing at national level to resolve labour disputes, whether they are viable and reliable, and whether workers can access them. Individual complaints mechanisms at the international level are useful as a last resort and as a means of strengthening national protection systems over time, but they are secondary to dealing effectively with labour issues, particularly if these are exacerbated by the introduction of new trade rules. Consequently, the human rights analysis in the TSIA needs considerable strengthening. First, the analysis could have been further elaborated and unpacked. The TSIA combines the screening, scoping and analysis steps of the impact assessment into one step and presents the analysis through tables 3.4 and 3.5. While presentation of information in tables can often help the reader visualize the results of analysis, tables are an inadequate means to present complex analyses. In particular, the cause–effect relationship between the introduction of a trade measure and its impact on human rights is generally indirect—in other words, the economic impact of the trade measure might have further economic, environmental and policy implications before it affects an individual’s rights, and other factors, such as the supporting institutional and policy framework and the availability of adequate remedies, qualify the impact. These are complex interactions which require some explanation. In this regard, the analysis does not do so. Further, the analysis provides few insights into the capacity of individuals to enjoy their rights and the capacity of duty bearers to meet their responsibilities. This capacity analysis can be very important in helping to understand the extent to which negative impacts can be avoided through strong institutional frameworks or whether potentially positive impacts can be optimized effectively, for example through public participation in policymaking. To give an example, a capacity analysis of right to health impacts (see Table 1 above) would consider the capacity of the Ministry of Health to absorb new regulations and changes in the budgetary situation, while a capacity analysis of rights holders would examine the extent to which individuals can access the health system and essential medicines. Thus, if the capacity of the Ministry of Health was low for some reason (such as understaffing, disorganization or corruption), it might have difficulties absorbing even potentially positive regulatory changes and transforming budgetary increases into benefits for individuals. The analysis is sometimes incomplete and lacking coherence. Table 3.4 in the Final Interim Technical Report, which sets out the human rights likely to be affected by the DCFTA, does not always correlate with the likely human rights impacts identified in table 3.5. For example, table 3.4 indicates that the DCFTA could affect the significant gender gap in Tunisia, particularly in employment, although without indicating if those impacts would be positive or negative (ECORYS 2013b: 71). However, table 3.5 does not refer to the impact of the DCFTA on the gender gap at all, and the only reference to women’s rights in table 3.5 relates to women’s capacity to become engaged in the process of negotiating and implementing the trade agreement (ibid: 77). Other elements of human rights analysis are left out. For example, the TSIA does not treat access to remedies in any detail, yet access to remedies can be important as a means to resolve and even avoid negative impacts of trade agreements. The analysis dismisses some impacts too quickly. For example, the TSIA dismisses potential effects on human rights of stronger dispute settlement under the DCFTA, indicating that the DCFTA and human rights law ‘seem’ to work in the same direction without providing any explanation of such a highly controversial statement (ECORYS 2013b: 76). Such a conclusion ignores the fact that the role of—and potential risks to—human rights in trade and investment dispute settlement has attracted significant commentary for some years (Pauwelyn 2005; Marceau 2002). Similarly, the analysis indicates that increased competition due to the DCFTA might lead to the erosion of labour standards, particularly affecting vulnerable groups. Labour mobility and increases in labour might mitigate these effects in the long term, although those already marginalized due to skill sets, age, personal circumstances or location might suffer (ECORYS 2013b: 74). This analysis raises alarm bells from a human rights perspective, but the likely impact is dismissed as likely to be ‘small’. Given the alarming nature of the suggested impact, the analysis should have explained in greater detail the potential impacts on vulnerable groups, the impact this might have on inequality and discrimination in society, whether the likely impact was ‘small’ at the national level but potentially significant at the community level, and so on. The compartmentalization of the human rights analysis into one chapter tends to miss human rights dimensions of other aspects of the assessment. For example, the discussion on water scarcity and quality focuses primarily on impacts related to agriculture and industry (ECORYS 2013c: 177–87). Yet water scarcity and quality also affect drinking water and are crucial aspects of the right to water and which therefore warrant further analysis under the chapter on water (UN Committee on Economic, Social and Cultural Rights 2002: paras 2, 6). The analysis explicitly avoids examining impacts on the population’s access to drinking water as these impacts are considered to be less direct (ECORYS 2013c: 177). However, such indirect impacts are often the core part of human rights analysis. In this regard, it is interesting that the analysis does refer to the new Constitution’s recognition of a right to environmental protection and sustainable development as a potentially positive influence on water quality and scarcity issues in Tunisia in the future (ibid: 183). Yet the potential positive impact of the recognition of this right is not explained either. Consequently, a two-track approach could be adopted to the human rights analysis, whereby a stand-alone chapter would contain the main human rights analysis but other chapters would reference human rights impacts identified through the economic, social or environmental analysis.1 Finally, the human rights-related conclusions in the Final Report are excessively brief and do not reflect the analysis. The analysis indicates a number of areas where potential impacts, both positive and negative, could occur, such as in the areas of increased government revenue, impact on employment, labour displacement, and labour standards, the gender wage gap and increases in the poverty rate for the more vulnerable. Some of these impacts are qualified by highlighting the role of the government in choosing appropriate policies to promote human rights. Yet the overall conclusions in the Final Report devote only a short paragraph to human rights impacts, indicating impacts as likely to be positive but small (ECORYS 2013c: 190). This short conclusion does not do justice to the analysis, contradicts previous statements suggesting potential negative impact, and ignores previous statements that highlight the role of government in ensuring pro-human rights policies in the context of trade. Are relevant human rights recommendations identified? At a general level, the overall approach to formulating recommendations differs from that proposed by a human rights methodology. Recommendations take the form of enhancing, mitigating or preventing measures, which might be of a legal or economic nature, to realize the optimal outcome of the DCFTA (ECORYS 2013c: 195). While a human rights methodology would normally prioritize preventive measures, particularly where negative human rights impacts are identified, the TSIA provides no hierarchy among enhancing, mitigating or preventing measures. As part of the process of making recommendations, the TSIA checks whether these measures create trade burdens or trade distortions, and if they do, whether the burden or distortion is justified. A human rights methodology would not take for granted the existence of an eventual trade agreement and would never subject recommendations to a trade compatibility test which would suggest primacy of trade over human rights. Instead, an HRIA would identify recommendations best suited to improving the human rights situation. In spite of the conclusion that impacts on human rights are likely to be ‘small but positive’, the TSIA does include some human rights-related proposals. Specifically, the TSIA recommends that domestic labour standards should approximate EU acquis in the field, human rights treaties focusing on vulnerable groups should be effectively implemented, human rights and social monitoring mechanisms of the DCFTA should be considered, and social dialogue should be promoted. Specifically in relation to the textile, clothing and leather sector, corporate social responsibility and monitoring of social effects are recommended (ECORYS 2013c: 199–200, 203). There are no recommendations which suggest any specific provisions in the body of the future DCFTA to protect human rights. There is no recommendation to encourage the monitoring of the conclusions of the TSIA at a specific time in the future although the proposed monitoring mechanisms proposed for the DCFTA would at least partially have the effect of doing that. The recommendations are directed towards the European Commission as the entity requesting the impact assessment. However, from a human rights perspective, it might also have been relevant to include recommendations directed towards the Tunisian government, given that the TSIA focused on human rights in that country. In its 2015 position paper in response to the TSIA, the European Commission indicates that a future DCFTA should include a comprehensive Trade and Sustainable Development chapter reiterating commitment to labour standards and promoting ratification of other conventions. The European Commission supports the inclusion in the DCFTA of a mechanism to monitor the agreement (although without reference to human rights monitoring), including dialogue with civil society and social partners and possible involvement of independent experts (European Commission 2014: 8–9). The Commission also highlighted technical cooperation programmes that would help put in practice some of the recommendations (ibid: 9). While these recommendations and the European Commission’s response are relevant to human rights, they are very general and do not identify responsible actors or steps to elaborate recommendations. The European Commission’s response refers principally to existing technical cooperation projects which do not have any apparent link or relevance to protecting rights in the context of the implementation of a future trade agreement. The monitoring mechanism is the most significant proposal, but as the mandate and framework of such a mechanism is not explained, its potential relevance to human rights is unclear. It is noteworthy that recent studies reviewing such mechanisms in other EU trade agreements suggest that such mechanisms are generally ineffective (Harrison et al. n.d.). Overall, the Commission’s response, at least in relation to any human rights-related recommendations, suggests that the results of the TSIA will not change current practice. The reader is left with a sense of great reluctance on behalf of the consultants and the European Commission to propose, receive or act upon genuine recommendations that could change the shape of the negotiations. Does the trade and sustainability impact assessment measure the extent to which the negotiation process respects human rights principles? The TSIA focused on the impact of the future agreement with few references to the negotiation process, and in particular without assessing the extent to which the negotiation process itself respects human rights. In spite of this, the inclusion of human rights analysis in the TSIA could be a signal that the negotiation process could take into account human rights and other considerations, given that the TSIA is intended to inform negotiations and the decision-making process of the DCFTA (European Commission 2012: 15). Importantly, one recommendation in the Final Report encourages the involvement of stakeholders in the DCFTA process (ECORYS 2013c: 197). As a sign in this direction, the European Commission commits, in its response to the TSIA, to engaging civil society in the negotiation process (European Commission 2014: 9). While the European Commission has been criticized in the past for not integrating the results of TSIAs into the negotiations (Bürgi Bonanomi 2014: 22), it is relevant to note that the Commission has recently made the texts setting out the proposals for the negotiations available on its website and again committed to ensuring civil society participation in the negotiations (European Commission 2016). Nonetheless, the TSIA could have included some specific discussion of the negotiations as an explicit part of the assessment report. Similarly, including trade negotiators in the assessment process—for example, in public meetings related to the TSIA—could help strengthen the link between the TSIA, its results and the future negotiations. Does the trade and sustainability impact assessment itself respect human rights principles, particularly participation? The TSIA includes consultation and participation throughout. The invitation to tender contains a requirement for expertise in the assessment team on consultation and networking activities and requires the consultants to complement qualitative and quantitative analysis with inputs from stakeholders through a range of meetings and through document dissemination (European Commission 2012: 20–25, 37). At its inception stage, the TSIA set out a consultation plan which includes an analysis of the risks to stakeholder engagement and ways to mitigate those risks and lists some 260 EU and Tunisian governmental and civil society stakeholders to be consulted (ECORYS 2013a: 35–41). The consultation plan is updated throughout the process of the TSIA (ECORYS 2013b: 103–5). The Final Report summarizes the consultation process and provides an overview of the results (ECORYS 2013c: 109–15). Consultation and participation activities took place in both Brussels and in Tunisia. Two public meetings were held in Brussels, at the beginning and the end of the TSIA process, and a validation workshop was held in Tunisia prior to choosing the four sectors subject to deeper assessment with a view to receiving stakeholders’ input into the choice of those sectors. On information available, participants in these meetings were predominantly commercial entities although representatives of human rights organizations and the European Economic and Social Committee attended (European Commission 2013). However, the Tunisian workshop was a stand-alone event so did not provide an opportunity for participants to review results and analyse them further in order to provide more comprehensive input at a later date (for example, at a second consultation). Apart from official meetings, a dedicated website and Facebook page were created to disseminate information about the TSIA and the negotiations and to facilitate consultation and validation of the findings. Personal interviews were included on a selective basis and a survey of small and medium enterprises (SME) and a household survey were undertaken. In addition, the TSIA consultants attended relevant meetings held by stakeholders on related issues as a means of reaching a wider audience and also for disseminating findings of the study (ECORYS 2013a: 38–9). As noted above, the negotiators of the future DCFTA do not appear to have been included in the consultation and participation process. While considerable efforts were placed in promoting consultation and participation in the TSIA, stand-alone HRIAs have gone further. For example, in an ex ante HRIA of the impact of the strengthening of protection for plant breeders (UPOV 91) on the right to food, in addition to interviews with key informants, assessors undertook community consultations over a six-month period with small-scale farmers, women farmers, indigenous peoples and marginalized households, supplemented by key information interviews and focus group discussions with farmers using livelihood mapping, seasonal calendars, historical transects, matrix ranking and flow diagrams, supplemented by household case studies including female-headed households (Braunschweig et al. 2014: 17–20). The consultation and participation process raised a series of proposals including recommendations related to the TSIA methodology (such as suggestions for literature reviews and questions on the methods used for consultation), suggestions of focus areas for the TSIA (investment, services involving the movement of persons, inclusion of land ownership issues, employment, regional development, water security, negative social impact and need for support in the area of social security) and indications of possible impact of the DCFTA (negative social effects and the need for social security support) (ECORYS 2013c: 111). However, the most detailed results of the consultation process came from the SME survey. The household survey disaggregated data by sex, age, education levels, regional type and geographical region (ibid: 63); however, there is no indication that in-depth consultation or participatory studies were undertaken in relation to individuals and groups, particularly those who were marginalized or vulnerable. The TSIA includes a recommendation to involve relevant stakeholders in the DCFTA process in order to achieve implementation of preventive and mitigating recommendations and to enhance social development and to involve civil society in monitoring the trade agreement (ECORYS 2013c: 197). As noted above, the European Commission accepted this and made an undertaking to involve social partners, associations, NGOs, academics, political partners and others in the preparation for and negotiation of the DCFTA and also accepted the recommendation to establish a monitoring mechanism for the future DCFTA, which would include dialogue with civil society representatives (European Commission 2014: 9). While the consultation and participation process is well developed, the process for including the results in the conclusions and recommendations is not. The results of the consultation process are referred to in the chapter on recommendations; however, references are few and relate to the results of the SME survey rather than consultations with individuals and groups or human rights organizations as such (ECORYS 2013c: 199). The TSIA does not explain how the results of the qualitative analysis are systematically reconciled with the quantitative analysis and there appears to be significant reliance on the results of economic modelling in making conclusions and recommendations. Moreover, there does not appear to have been consultation around the development of recommendations listed in the Final Report (ibid: 195). Overall human rights evaluation of the trade and sustainability impact assessment The TSIA complies with many of the formal aspects of an HRIA methodology. Human rights appear explicitly among the objectives of the TSIA and the assessment is grounded in human rights norms and standards. A baseline study provides a comprehensive overview of the human rights situation in Tunisia, although not in the EU, and the study relies significantly on reliable information from UN and regional human rights mechanisms. The TSIA covers all rights—civil and political and economic, social and cultural rights—and also identifies those individuals and groups most vulnerable to changes in trade rules, as well as those actors that are responsible for guaranteeing human rights in the context of trade. In addition, the TSIA identifies a comprehensive range of potential human rights impacts and analyses their significance according to rights-based significance criteria. The assessment techniques include a range of qualitative and quantitative methods and the TSIA promotes broad consultation and participation of various stakeholders throughout the TSIA process. However, in practice, the TSIA is far from meeting the requirements of an HRIA methodology, and the TSIA methodology needs considerable strengthening. Most importantly, the human rights analysis should be deeper and more detailed. The three steps actually used—baseline study, identification of relevant rights, and identification of relevant impacts and their significance—are insufficient to explain in detail the complex relationships between trade and human rights. A screening step that examines all the crucial areas of trade agreements more likely to affect human rights and the human rights most likely to be affected should be added after the baseline study and used to narrow the investigation at an early stage. As a result, a limited number of trade sectors or issues—such as intellectual property protection or agricultural trade—could be identified and then explored in much greater depth. The results of the analysis should be presented in narrative form—and possibly through diagrams. Using causal chain analysis and possibly other assessment techniques, including participatory techniques, the chain of effects from introduction of a trade measure to potential impact on particular rights should be set out, including also explanations of alternative factors that might exacerbate, mitigate or explain this impact. This analysis should refer explicitly to the government actors responsible for avoiding negative impacts and provide an indication of their capacity to do so. Another factor that could strengthen the human rights analysis is the systematization of human rights indicators. The framework of structural, process and outcome indicators developed by the UN Office of the High Commissioner for Human Rights (OHCHR) provides a useful starting point to identify relevant indicators. However, this framework must be adapted to the particular HRIA in question, as no standard set of indicators for HRIAs has been devised, or indeed is able to be devised. Whatever indicators are chosen, care should be exercised to make sure that the indicators are used consistently across the assessment. Thus, if the outcome indicator of access of marginalized girls to education is used in the baseline study, then the same indicator should be referred to during later stages of the analysis. In this way, it will be possible to trace the impact of the trade agreement on the indicator by comparing the scenario without the trade agreement with the scenario with the trade agreement. In addition, a two-track approach to human rights analysis would help ensure the most comprehensive review of potential impacts. In other words, while a stand-alone chapter on human rights impacts should help identify the main human rights impacts, it is relevant to identify human rights aspects in other parts of the analysis, in particular chapters on social and environmental impacts. Impacts on employment might lead to human rights concerns where there is an ineffective system of social security in place, while increases in emissions might have health consequences, and potentially right to health impacts, where, for example there is unequal access to health care. In highlighting these possible human rights impacts, the TSIA might provide insights which could require changes to the negotiations or lead to more in-depth HRIAs on particular issues. The clarification of the causal chain of effects between introduction of a trade measure and enjoyment of a particular right as proposed should help to sharpen conclusions and ensure that they reflect the analysis. In the EU–Tunisia TSIA, much of the human rights analysis was lost in the conclusions, where human rights impacts were summarized as likely to be ‘small but positive’. Not only did this summary fail to reflect the previous analysis, it could also be misleading and ultimately cover up potential risks that could be avoided. While human rights-related recommendations were included in the Final Report, the link between the recommendations and the conclusions on human rights impact were unclear. In this regard, it is relevant to note that the European Commission ‘Guidelines on analysing human rights impacts in impact assessments for trade-related policy initiatives’, which post-date the EU–Tunisia TSIA, propose the use of a table indicating the human right and how the right might be affected positively, negatively or neutrally—illustrated through the use of ‘–’, ‘0’ or ‘+’—in relation to three different trade negotiation options (European Commission 2015: 12). So long as such a table is accompanied by an explanatory narrative, this could be useful for ensuring that the link between the trade measure under discussion, its impact on rights and the proposed recommendation is sufficiently clear. Another area for strengthening is the approach to consultation and participation. The TSIA demonstrated a significant and transparent consultation and participation process which should have increased knowledge around the negotiations of the DCFTA and has led to commitments to encourage participation around the negotiation and implementation of the DCFTA by the European Commission. In spite of many positive aspects, the TSIA does not meet the relatively high demands of participation when viewed from a human rights perspective. There appears to be greater emphasis placed on consultation and participation of economic actors, such as SMEs, rather than human rights organizations and individuals and groups whose rights might be affected by the introduction of the DCFTA. The analysis, conclusions and recommendations should be more explicit in explaining the weight given to qualitative and quantitative data as there appears to be significant reliance on quantitative analysis, particularly from the economic modelling, and little influence of the results of the qualitative data gained through consultation and participation. Affected individuals and representative organizations should have an opportunity to have input into the recommendations from the assessment if participation and consultation is to be meaningful. A key factor to improve the HRIA methodology is to ensure that the assessment team benefits from qualified and experienced human rights professionals. While the invitation to tender requires human rights expertise, ECORYS appears, from its website, not to have any significant human rights focus and there is no indication in the report whether the assessment team benefited from specific human rights expertise. One solution could be to tender separately for human rights consultants given the specific nature of the analysis. These shortfalls in the approach to consultation and participation might be a result of the comprehensive nature of the TSIA. The geographical scope of the TSIA and its broad coverage of economic, social, human rights and environmental issues might mean that community level participatory techniques expected from a human rights approach might be particularly onerous. These techniques require significant resources and expertise and might not provide the sort of information needed to support conclusions on impact that can be nationally relevant. However, without a much deeper level of consultation and participation with individuals and communities, it is difficult to recognize an HRIA methodology in the real sense of the term. Much greater emphasis needs to be placed on consulting with individuals and communities and human rights organizations, presenting the results of these consultations and explaining how they affect the conclusions and recommendations. Now that there are increasing examples of completed TSIAs including elements of consultation and participation, a review of the consultation and participation processes of TSIAs would be timely. Such a review could examine the extent of participation, the extent to which it influenced the findings of the TSIAs, the extent to which it influenced the trade negotiations, as well as the extent to which it raised awareness of the trade agreement and led to wider engagement of stakeholders in the trade negotiations and trade processes more generally. The review could take into account the different demands placed on integrated and stand-alone HRIAs and help devise a methodology to ensure adequate participation and consultation that can be adapted to different types of HRIA. A relevant factor to bear in mind in making this evaluation is that human rights methodologies have been developed principally for stand-alone HRIAs rather than IAs that integrate human rights analysis along with other economic, social or environmental impact assessment. This necessarily affects the extent to which the human rights methodology is followed. For integrated assessments, the fact that a human rights methodology is combined with other impact assessment methodologies means that some aspects of the HRIA methodology such as participation might simply be too complex to undertake without using up time, focus and resources necessary for the wider analysis. However, this should not deny the importance and relevance of the integrated approach. Indeed, the inclusion of human rights in broader TSIA assessments of trade agreements has several positive effects. Importantly, the TSIA helps to situate human rights impacts in a broader context of economic, environmental and social impacts, providing a fuller picture of the potential impact of the DCFTA. In addition, the analysis of other impacts, particularly economic impacts, provides key information to understand human rights impacts. Understanding these economic impacts is at times a precondition to understanding human rights impacts, so in this sense, the TSIA does a lot of the initial analysis necessary for the human rights analysis. Ultimately, it is important not to see this as a choice between a stand-alone HRIA and a broader IA that includes human rights analysis. Instead, broader IAs should be seen as initial research that could support a more focused HRIA. Given that the TSIA indicates certain disproportionate impacts on people in vulnerable or marginalized situations and raises concerns about pressure on respect for labour standards due to increased competition, the TSIA provides the basis to launch HRIAs into these specific areas. This iterative approach is in keeping with impact assessment methodologies which generally adopt a sequenced approach that deepens analysis over time. Conclusions The inclusion of human rights assessment in the European Commission’s TSIAs has great potential. It offers an avenue to respond to concerns from civil society that they have been excluded from the process of trade negotiations, including impact assessment, and it provides the opportunity to expand HRIA practice in the field of trade. This in turn should help explain and legitimize processes around globalization and also to contribute to the professionalization of HRIA and the refinement of HRIA methodologies with the benefit of practice. This article is an attempt to contribute to the professionalization of HRIAs by critically reviewing one recent integrated IA. The TSIA demonstrated significant formal respect for HRIA methodologies but failed to engage substantively with human rights. Consequently, critical elements, most importantly the human rights analysis and the recommendations, need considerable strengthening while further research is needed into developing appropriate methodologies for human rights participation and consultation that can be adapted to the demands of particular HRIAs. The European Commission’s adoption of its Guidelines on the analysis of human rights impacts in impact assessments of trade-related policy initiatives in 2015 should help to strengthen the underlying methodology of TSIAs. A recent study after the adoption of the Guidelines indicates some improvements, including more demanding terms of reference from a human rights perspective, a clearer analysis of human rights impacts comparing the situation before and after adoption of an agreement, and stronger recommendations that propose provisions in the agreement that explicitly or implicitly protect human rights (Development Solutions 2015, 2016). In spite of these improvements, challenges remain. These include the need to clarify the indicator framework used to assess impact; the need for stronger capacity analysis of the impact of agreements on specific individuals’ enjoyment of their rights and duty bearers’ ability to meet their human rights obligations and to avoid negative impacts emerging; clearer causal chain analysis from introduction of new trade and investment provisions to the impact on the rights of particular individuals; and further improvements to the active participation of stakeholders in the assessment process. The continued review of TSIAs according to the methodology outlined in this paper will therefore be critical. With human rights now systematically integrated into TSIAs of the European Commission, the likelihood of other governmental and non-governmental actors undertaking HRIAs of trade agreements increases. Systematizing good HRIA practice at this stage should hopefully raise the bar for HRIAs and encourage a high quality standard as a guide for the future. Footnotes 1 The next section, ‘Overall human rights evaluation of the TSIA’ provides some more detail of what the two-track approach comprises. Acknowledgements I would like to thank Nora Götzmann, James Harrison and Susan Mathews for their very helpful comments on a previous draft. References Berne Declaration, Canadian Council for International Cooperation, and Misereor . 2010 . Human Rights Impact Assessment for Trade and Investment Agreements. Report of the Expert Seminar, Geneva, 23–24 June. Braunschweig T. , Meienberg F. , Pionetti C. . 2014 . Owning Seeds, Accessing Foods: A Human Rights Impact Assessment of UPOV 91, based on case studies in Peru, Kenya and the Philippines. The Berne Declaration. Bürgi Bonanomi E. 2014 . EU Trade Agreements and their Impacts on Human Rights. Centre for Development and Environment, University of Berne; Study Commissioned by the Federal Ministry of Economic Cooperation and Development. Council of the European Union . 2012 . EU Strategic Framework and Action Plan on Human Rights and Democracy. 11815/12. http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/131181.pdf (referenced 29 December 2016). Development Solutions . 2015 . Sustainability Impact Assessment in Support of an Investment Protection Agreement between the European Union and the Republic of the Union of Myanmar: Inception Report. Brussels: European Commission, Directorate-General for Trade. Development Solutions . 2016 . Sustainability Impact Assessment in support of an Investment Protection Agreement between the European Union and the Republic of the Union of Myanmar: Final Report. Brussels: European Commission, Directorate-General for Trade. ECORYS . 2013a . Trade and Sustainability Impact Assessment in support of negotiations of a DCFTA between the EU and Tunisia: Final Inception Report. Rotterdam: European Commission, Directorate-General for Trade. ECORYS . 2013b . Trade and Sustainability Impact Assessment in support of negotiations of a DCFTA between the EU and Tunisia: Final Interim Technical Report. Rotterdam: European Commission, Directorate-General for Trade. ECORYS . 2013c . Trade and Sustainability Impact Assessment in support of negotiations of a DCFTA between the EU and Tunisia: Final Report. Rotterdam: European Commission, Directorate-General for Trade. European Commission . 2012 . Invitation to Tender Related to a Framework Contract to provide Trade Sustainability Impact Assessments (Trade SIAs) in Support of the Negotiations to Upgrade the Euro-Mediterranean Association Agreements and to Establish a Deep and Comprehensive Free Trade Area (DCFTA) between the European Union and respectively Egypt, Jordan, Morocco and Tunisia. Letter from Ignacio Garcia Bercero, 27 July. European Commission . 2013 . Trade SIA in support of a Deep and Comprehensive Free Trade Agreement between the EU and respectively Morocco and Tunisia, Draft Inception Report. http://trade.ec.europa.eu/civilsoc/meetdetails.cfm?meet=11403 (referenced 13 January 2017). European Commission . 2014 . European Commission Services’ Position Paper on the Trade Sustainability Impact Assessment in Support of Negotiations of a Deep and Comprehensive Free Trade Agreement between the European Union and Tunisia. http://trade.ec.europa.eu/doclib/docs/2015/april/tradoc_153337.pdf (referenced 4 March 2016). European Commission . 2015 . Guidelines on the Analysis of Human Rights Impacts in Impact Assessments of Trade-Related Policy Initiatives. Directorate-General for Trade. http://trade.ec.europa.eu/doclib/docs/2015/july/tradoc_153591.pdf (referenced 27 December 2016). European Commission . 2016 . The Texts Proposed by the EU for a Deep and Comprehensive Free Trade Area (DCFTA) with Tunisia. 16 April. http://trade.ec.europa.eu/doclib/press/index.cfm?id=1490&serie=1106&langId=en (referenced 27 December 2016). Forman L. , MacNaughton G. . 2015 . Moving Theory into Practice: Human Rights Impact Assessment of Intellectual Property Rights in Trade Agreements . Journal of Human Rights Practice 7 ( 1 ): 109 – 38 . Google Scholar CrossRef Search ADS Harrison J. 2010 . Human Rights Impact Assessments of Trade Agreements: Reflections on Practice and Principles for Future Assessments. Paper presented at the Expert Seminar on Human Rights Impact Assessments of Trade and Investment Agreements, 23–24 June, Geneva. http://www.humanrights.ch/upload/pdf/100719_Background_paper.pdf (referenced 7 September 2016). Harrison J. 2011 . Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment . Journal of Human Rights Practice 3 ( 2 ): 162 – 87 . Google Scholar CrossRef Search ADS Harrison J. 2013 . Human Rights Impact Assessment of Trade Agreements: What is the State of the Art? Conference Paper, Vienna, 5 November. http://www.oefse.at/fileadmin/content/Downloads/Veranstaltungen/Tagungsdokus/James_Harrison_Trade_HRIA_paper_5_11_2013.pdf (referenced 23 December 2016). Harrison J. , Barbu M. , Campling L. , Richardson B. , Smith A. . No date. Governing Labour Standards through Free Trade Agreements: Limits of the European Union’s Trade and Sustainable Development Chapters. Forthcoming, copy available from author. Marceau G. 2002 . WTO Dispute Settlement and Human Rights . European Journal of International Law 13 ( 4 ): 753 – 814 . Google Scholar CrossRef Search ADS Paasch A. , Chemnitz C. , Sengupta R. , Ramdas S. et al. 2011 . Right to Food Impact assessment of the EU–India Trade Agreement. Misereor, Heinrich Böll Stiftung, Third World Network, Anthra, Glopolis, Ecofair Trade Dialogue. http://www.ecofair-trade.org/content/study-right-food-impact-assessment-eu-india-trade-agreement (referenced 20 September 2016). Pauwelyn J. 2005 . Human Rights in WTO Dispute Settlement. In Cottier T. , Pauwelyn J. , Bürgi E. , Human Rights and International Trade . Oxford University Press . Google Scholar CrossRef Search ADS UN Committee on Economic, Social and Cultural Rights . 2002 . The Right to Water: Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights: General Comment 15. E/C.12/2002/11. UN Human Rights Council . 2011 . Guiding Principles on Human Rights Impact Assessments of Trade and Investment Agreements. Report of the Special Rapporteur on the Right to Food, Olivier de Schutter. A/HRC/19/59/Add.5. UN OHCHR (Office of the High Commissioner for Human Rights) . 2012 . Human Rights Indicators: A Guide to Measurement and Implementation. H/PUB/12/5 . Geneva and New York : United Nations . Walker S. 2009 . The Future of Human Rights Impact Assessments of Trade Agreements . Brussels : Intersentia . Walker S. 2011 . The United States–Dominican Republic–Central American Free Trade Agreement and Access to Medicines in Costa Rica: A Human Rights Impact Assessment . Journal of Human Rights Practice 3 ( 2 ): 188 – 213 . Google Scholar CrossRef Search ADS © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

Journal of Human Rights PracticeOxford University Press

Published: Apr 2, 2018

There are no references for this article.

You’re reading a free preview. Subscribe to read the entire article.


DeepDyve is your
personal research library

It’s your single place to instantly
discover and read the research
that matters to you.

Enjoy affordable access to
over 18 million articles from more than
15,000 peer-reviewed journals.

All for just $49/month

Explore the DeepDyve Library

Search

Query the DeepDyve database, plus search all of PubMed and Google Scholar seamlessly

Organize

Save any article or search result from DeepDyve, PubMed, and Google Scholar... all in one place.

Access

Get unlimited, online access to over 18 million full-text articles from more than 15,000 scientific journals.

Your journals are on DeepDyve

Read from thousands of the leading scholarly journals from SpringerNature, Elsevier, Wiley-Blackwell, Oxford University Press and more.

All the latest content is available, no embargo periods.

See the journals in your area

DeepDyve

Freelancer

DeepDyve

Pro

Price

FREE

$49/month
$360/year

Save searches from
Google Scholar,
PubMed

Create lists to
organize your research

Export lists, citations

Read DeepDyve articles

Abstract access only

Unlimited access to over
18 million full-text articles

Print

20 pages / month

PDF Discount

20% off