In June 2021, the Commission launched an in-depth review of its trade policy aiming to ensure that its trade agreements foster sustainability, so that economic growth goes together with the protection of human rights, decent work, climate, and the environment. As part of the review, the European Commission conducted an open public consultation late 2021, to which FIDH actively contributed.
In the 20 actions points, the Commission reaffirms its commitments and makes clear it will pursue efforts to seriously support human rights and the environment in the context of its trade agreements.
FIDH welcomes the fact that the most important recommendations made by FIDH in public consultations, letters, and meetings were taken into account. Among them, the European Commission committed to the following points.
– Negotiate detailed and time-bound roadmaps with milestones on how to implement the Trade and Sustainable Development (TSD) chapter of trade agreements, recognizing a role for civil society in monitoring the implementation of these roadmaps.
– Conduct better targeted impact assessments on TSD, and ensure that impact assessments and sustainability impact assessments analyse all relevant chapters of trade agreements. This will allow for identification of which provisions and commitments are most likely to have an impact on sustainability issues as well as where the agreement opens opportunities for achieving sustainability objectives beyond the TSD chapter.
– Improve the complaint mechanism set up in 2020 by updating the operating guidelines. This will make clear that domestic advisory groups (DAGs) can submit collective complaints and that an EU-based complainant can represent the TSD-related concerns of an entity located in a partner country — a clear demand formulated by FIDH. The update also includes greater transparency and clarity on how and within what time frames the complaint mechanism — called “single entry point” (SEP) — can handle the initial stages of a complaint about a TSD violation.
– Ensure an inclusive consultation process with civil society throughout all stages of the life cycle of trade agreements, in addition to further strengthen the role, transparency, and composition of the DAGs, including beyond TSD.
– Further strengthen the enforcement of TSD commitments in future agreements by proposing to EU trading partners to:
1. extend the general state-to-state dispute settlement compliance stage to the TSD chapter;
2. involve the DAGs in monitoring the compliance stage;
3. extend the possibility to apply trade sanctions in cases of failure to comply with obligations that materially defeats the object and purpose of the Paris Agreement on Climate Change or in serious instances of non-compliance with the International Labour Organisation’s (ILO) fundamental principles and rights at work.
Despite these welcome advances, the action points unfortunately have at least three significant shortcomings:
First, the European Commission should ensure that the main human rights conventions be ratified before trade agreements enter into force;
Second, FIDH had recommended better use of the "essential element clause", which provides that human rights, ILO conventions, and the Paris agreement on climate are essential elements of parties’ relations to the trade agreement and which allows to take all appropriate measures — including the suspension of the agreement in whole or in part — in case of violation. While the Communication restates the fact that the "essential element clause" will be activated to suspend elements of the trade agreement "as a last resort" and should a country be in serious breach of ILO conventions or of the Paris Agreement, FIDH regrets that these sanctions are not considered for serious violations of human rights conventions. In failing to include the larger spectrum of human rights, the Commission contributes to breaching the indivisibility of those rights.
Finally, FIDH regrets the lack of reference to States’ obligations to protect human rights against the negative impact companies and investors may have on the enjoyment of human rights. The Commission remains also silent on companies’ due diligence obligations. These points should be reinforced, and the relevant clauses in the trade agreements should be explicit in that regard.