Adaptation and engagement with contemporary sustainability challenges in the EU-Andean and EU-Central America free trade agreements

This study investigates how labour provisions in both EU and US trade agreements impact on decent work in countries that ratified such agreements. It uses a new database of workers’ rights spanning a large cross-section of 125 partner countries. The results show that such labour provisions in EU trade agreements are only effective in reducing violations of workers’ rights in member countries, while those of the US were not effective in reducing the total violations of workers’ rights for member countries. Further evidence shows that both the EU and US labour-inclusive trade agreements significantly increase the violations of their rights in practice – indicating inadequate enforcement of labour provisions. Such evidence highlights that labour provisions in trade agreements may bolster the protection of legal labour rights without an improvement in their practical application. This calls for a strong commitment to the implementation of decent work policies by aligning domestic labour practices to international best practices.

A core component of the European Union’s (EU) commitment to combatting climate change is the international promotion of issues related to sustainable development. Historically, it has done this by means of different instruments, such as international cooperation or development aid, but recently, it has opted increasingly for trade agreements between the EU and third states. These agreements include rules on sustainable development, with the main motivation for their inclusion being to prevent ‘race-to-the-bottom’ dynamics between the EU and its trade partners. The logic underlying a ‘race-to-the-bottom’ scenario is that there is asymmetry in the ambition levels of the regulatory standards in developed countries, on the one side, and developing or transition countries, on the other. This raises the question of whether the trade agreements between the EU and its trade partners which are developing or transition countries are more detailed concerning sustainable development than those with advanced economies. The empirical analysis of 12 trade agreements reveals that the rules on sustainable development vary across the EU’s trade partners. When the trade partners are developing or transition countries, the corresponding sections in the agreements are longer and more detailed. Sustainable development is also addressed in the agreements signed with trade partners that have developed economies, but in a more concise manner.

The EU has concluded comprehensive preferential trade agreements with Central American (CA) countries and the Andean Community (AC). Despite significant asymmetries in terms of the timing of the respective commitments, these agreements include provisions that significantly eliminate and/or reduce both tariff and non-tariff barriers to trade and promote stringent norms concerning human rights. Even though these trade partner countries have a relatively small market size, these agreements mobilized few but important exporting interests in the EU. More specifically, European producers and investors supported these trade deals with a view to level the playing field with their US counterparts, which had increased market access to these sets of countries thanks to the trade agreements signed with the US a few years earlier. Due to the low levels of integration of both CA countries and the AC, the political role of EU import-dependent firms remained marginal throughout these negotiations. While European farmers voiced their strong opposition to the prospect of an EU–MERCOSUR (Mercado Comun del Sur) trade agreement, they did not mobilize to oppose EU trade agreements with these other Latin American countries. Opposition to these agreements mainly materialized in the form of concerns raised by some NGOs and trade unions over the human rights, environmental and labour rights implications of these agreements. However, the inclusion of a wide set of provisions dealing with these issues in the negotiating position of the EU was successful in diffusing this opposition over time.

Pressures have grown on European policy-makers to ensure that geo-economic interests do not come at the cost of the environment and workers’ rights. In light of increased public salience of EU trade deals with third countries, this chapter explores how the EU satisfies sustainability demands in trade agreements and how geopolitical considerations impact the design of specific clauses in recent trade deals with five Asian countries. We argue that while the relative impact of the international level on the design of sustainability clauses is not observable, the EU template allows for potential interactions between the sustainability dimensions of EU and US agreements. This chapter is divided into three parts. The first part provides an overview of the distinct characteristics of so-called Trade and Sustainable Development (TSD) chapters in EU trade agreements. We show how the EU’s ‘soft approach’ in the TSD chapters functions in particular contrast to the ‘hard approach’ followed in US trade agreements. In the second section, we explore how far geo-political considerations (‘cooperation’ and ‘competition’ scenarios) in the international sphere are able to explain the soft design of the EU TSD chapters. We come to the conclusion that internal EU dynamics (interests, ideas and institutions) are more likely to set the logic of TSD chapters. In the third section, we compare five TSD chapters in EU trade agreements with Korea, Singapore, Vietnam, Japan and Indonesia, finding further evidence for the EU’s continued use of a more or less coherent template, with some provisions adapted to Asian partner countries’ preferences.

INTERNATIONAL union rights Page 3 Volume 21 Issue 3 2014 FOCUS ❐ TRADE AGREEMENTS AND THE LABOUR MOVEMENT Labour Rights and Trade: Raising Standards for Workers? Labour rights provisions in trade agreements have become more commonplace JEFFREY S. VOGT is Legal Advisor in the Department for Human and Trade Union Rights with the International Trade Union Confederation in Brussels imposed if a country fails to take the actions recommended by the arbitration panel. The approach taken by the EU in recent agreements is markedly different. While EU trade agreements include somewhat stronger standards than US agreements, EU ‘enforcement’ mechanisms are based entirely on dialogue and contain no dispute mechanism should that fail. The labour provisions in recent EU trade agreements, such as the EU-Korea FTA or the Comprehensive Economic and Trade Agreement (‘CETA’) between the EU and Canada require each party to ‘seek to ensure that those laws and policies provide for and encourage high levels of … labour protection, consistent with the internationally recognised standards or agreements’ and ‘shall strive to continue to improve those laws and policies ’. The concept of ‘labour’ is broader than in the US, as it also refers to the ILO Decent Work Agenda, which also contemplates social protection , social dialogue and job creation. The parties also ‘reaffirm the commitment’ under the 2006 Ministerial Declaration of the UN Economic and Social Council on Full Employment and Decent Work, as well as to commit, in accordance with their membership in the ILO and the ILO Declaration on Fundamental Principles and Rights at Work to ‘respect, promote and realise’ in their laws and practices the principles concerning the ILO fundamental rights. The parties also reaffirm their commitment to effectively enforce those ILO conventions that each party has already ratified and commits to ‘make efforts’ to ratify the fundamental and ‘up-to-date’ conventions. As to implementation and enforcement, the EU-Korea FTA, for example, requires the parties to commit to ‘reviewing, monitoring and assessing the impact of the implementation’ of the agreement. It also requires a civil society forum to be convened each year including representatives from ‘domestic advisory groups’, which include labour representatives. A party may request consultations and parties are to ‘make every attempt to arrive at a mutually satisfactory resolution’. If the party wants to press the matter further, it may request that the Committee on Trade and Sustainable Development be convened to find a resolution. If that fails, a panel of experts may be convened, which will examine the matter and issue a report with recommendations . However, if the party complained against refuses to act, there is no enforcement mechanism under the agreement to compel compliance. Under the CETA, a provision is included to review the effectiveness of the implementation of the trade and labour chapter, including a possible review of the measures for settling disputes. For good reason, trade unions in the US, EU and Canada continue to criticise the labour proI n 1994, the North American Free Trade Agreement (between Canada, Mexico and the United States) entered into force, marking the first ‘free’ trade agreement to include enforceable labour standards in addition to the numerous commercial provisions. The labour side agreement , the North American Agreement on Labour Cooperation (‘NAALC’), was a last-minute deal brokered by the Clinton White House in an effort to bring sceptical Democrats in the US Congress to support the agreement. It did not require countries to raise their labour standards to a common floor, but instead to enforce one’s own laws as they related to a number of principles, which include what are now defined by the International Labour Organisation (‘ILO’) as fundamental labour rights, and to ‘strive’ to improve those laws over time. The enforcement mechanism is also limited and only violations related to occupational safety and health, child labour or minimum wage technical labour standards can be taken all the way through the dispute settlement process. No case has ever advanced beyond the first step, ministerial consultations, though public hearings have been convened to allow the parties to present evidence and establish a record after which a public report is issued with recommendations . The rationale for the NAALC was to attempt to avoid unfair...

Although the debate on the inclusion of labour provisions in trade agreements seemed to be closed after the multilateral trade negotiations in the late 1990s, it is revived in the current negotiation of the EU–US Transatlantic Trade and Investment Agreement (TTIP). TTIP negotiations are of particular importance in this regard as the agreement is believed to set the norm for future negotiations. This paper examines the evolution of labour provisions in the EU and US trade agreements in the past two decades. It finds that: First, labour provisions are increasingly included in trade agreements of the US and the EU. Second, ILO instruments are the main reference here, and they often include an explicit reference to the decent work agenda. Third, reference to the role of the ILO in the implementation of labour commitments is less explicit, but leaves the door open for involvement in various ways, mainly through technical cooperation activities, monitoring or via a consultative role in dispute settlement mechanisms.The analysis leads to the conclusion that whereas the trade–labour linkage and the role of the ILO in trade may have been pushed out of the multilateral trade system, the discussion revived in the framework of pluri-lateral trade negotiations.

An Investment Court System for the New Generation of EU Trade and Investment Agreements: A Discussion of the Free Trade Agreement with Vietnam and the Comprehensive Economic and Trade Agreement with Canada

Sustainable development provisions have become an integral part of the European Union's (EU's) ‘new generation’ trade agreements. Yet, a growing number of empirical works show that their design varies significantly, even in the trade agreements signed with countries at similar (low) levels of development. We contend that this variation can be accounted for by discussing how the growing integration of the EU economy with specific developing countries across global value chains (GVCs) affects the domestic politics of regulatory export in the EU. European firms that operate within GVCs rely on imports of inputs produced in low-labor cost countries. These firms tend to oppose the export of those regulatory burdens that generate an increase in their imports' variable costs. The political mobilization of these actors weakens domestic coalitions supporting regulatory export strategies, which explains why the EU adopts a more lenient approach over the inclusion of sustainable development provisions in Preferential Trade Agreement negotiations with some developing countries.

This chapter examines the new method of investment dispute resolution introduced by the Comprehensive Economic and Trade Agreement (CETA). The traditional method of resolving investment disputes was through international arbitration, and most bilateral investment treaties and comprehensive trade agreements followed this model. This was because foreign investors could not reasonably trust domestic courts to resolve disputes in a trustworthy manner. Hence, it became common practice to seek a “neutral” method, which was provided by the concept of international arbitration. Even international organizations created for the purpose of solving disputes (such as the ICSID) were still tied to arbitration. This stands in contrast to the CETA, which established a permanent form of dispute settlement through an international court system. This chapter thus focuses on introducing this new concept and explains its strengths and potential disadvantages, in particular the enduring threat of regulatory chill. Besides the content and evaluation of the new Investment Court System (ICS), the chapter also briefly examines the negotiation and creation process behind the comprehensive trade agreement.

All eyes are on the European Commission following the communication on a new approach to Trade and Sustainable Development (TSD) Chapters in EU Free Trade Agreements (FTAs). The focal point of EU trade policy recently shifted back towards bilateral trade agreements with a greater scrutiny on the sustainability objectives embedded in the TSD Chapters such as tackling global emergencies including the climate crisis, deforestation, and biodiversity loss. But what does this new approach entail, and how effective will it be at improving the monitoring and enforceability of the TSD Chapters? This article reviews the new TSD Chapter approach and assesses its overall objective to address sustainability concerns linked to international trade. The article discusses missed opportunities for enhancing sustainability in EU trade agreements and reflects what the new TSD approach could mean for newly concluded and ongoing trade agreements.

Promoting values of the European Union has been on the EU’s external trade agenda since the 1990s. The Treaty of Lisbon established a general framework for values and principles, requiring the Union to pursue these concepts in the whole range of EU external relations, including the Common Commercial Policy (CCP). Therefore, the operation of CCP is governed not only by traderelated concepts such as progressive liberalisation, but it also reflects on non-trade concerns – e.g. protection of human rights, fair trade, or sustainable development – as well. This inclusive character of CCP is anchored also in the new external trade strategy of the European Union (‘Trade for all’), which stresses the importance of trade agreements concluded by EU in promotion of values towards third countries. The paper aims at addressing a conceptual and a procedural question related to this context: First, what kind of values of the European Union integrated in trade agreements can lead to the Europeanisation of domestic legal order of the third countries; and second, how these concepts can be implemented, i.e. how the process of Europeanisation is taking place using the example of the human rights promotion.

Surprisingly, labour provisions in EU bilateral trade agreements have widened and deepened over the past decade. One would have expected the opposite, given the coming to power of centre-right governments in the early 2000s and a stronger liberalization agenda since 2006. This article addresses this rather remarkable development. First of all it dismisses the argument that protectionist motives underlie the stronger social clauses in EU trade agreements. Instead, drawing on the theory of the life-cycle of norms, it suggests that social trade has become an unobjectionable norm within the EU. The article then offers several explanations for why the social-trade nexus has been barely disputed, and indeed has further expanded through subsequent trade arrangements. These include the stronger influence of the European Parliament, path-dependencies stemming from the EU’s previous template, and the need to gain public support in the face of criticism of free trade agreements. Most importantly, it stresses that the framing of core labour rights as part of a broader ‘sustainable development’ agenda has contributed to their unobjectionable status. While this framing has helped to forge a consensus with regard to the social trade agenda, giving equal status to labour and environmental provisions under the sustainable development umbrella might also have adverse consequences for the concept of labour provisions.

Since the early 1990s, the EU's trade agreements have included a 'human rights clause' requiring the parties to respect human rights and democratic principles. More recently, beginning with the 2008 EU-Cariforum Economic Partnership Agreement, they have also included 'sustainable development' chapters, which contain obligations to respect labour and environmental standards. This article considers the extent to which, legally, these two sets of provisions give the EU the means of implementing its obligations to ensure that its external activities respect human rights and pursue the objective of promoting sustainable development. It also considers the desirability of these differences in the EU's approach to the human rights and democratic principles, on the one hand, and labour and environmental standards, on the other.

The article explores some legal issues regarding comprehensive trade and mixed agreements of the European Union (EU). The concept of mixed agreements is special to the EU legal order and under strain after the opinion 2/15 of the Court of Justice of the European Union of 16 May 2017, in which the Court defined the exclusive competence of the EU for concluding “EU-only agreements” in the context of the common commercial policy. This led to a split-up of trade agreements of the Union into “EU-only agreements” and mixed agreements on investment issues whereas no change of policy had been established for association agreements to date. Besides creating greater legal certainty, some problems remain regarding the to-be-improved acceptance of EU free trade agreements in the Member States. The analysis focuses on the division of powers between the EU and the Member States and its impact on mixed agreements on a political and legal level. It concludes that “mixity” has not been ended by the jurisprudence of the Court of Justice and can still be seen as a useful tool in the process of negotiating and concluding future comprehensive international trade and association agreements.

Since 2019, a commitment has been included in the European Union’s (EU) preferential trade agreements to effectively implement the Paris Agreement. This commitment now exists in nine ratified or pending trade agreements. Yet research into the legal nature and institutional implications of this linkage between the Paris Agreement and EU trade agreements remains scant. Relying on the governance stringency framework, we explore the evolution of this commitment across EU trade agreements, highlighting its transition from a statement of shared intent into a legally binding obligation. We argue that the EU’s latest trade agreements increase the cost of withdrawing from the Paris Agreement and bolster the Paris Agreement’s obligations of conduct, namely parties’ procedural duties, the expectation of progressively more ambitious climate pledges, and the commitment of all parties to realise these to the best of their efforts. Finally, we suggest that the implementation and enforcement mechanisms available through EU trade agreements in the context of the Paris Agreement commitment may prove pivotal in realising the climate regime’s objectives.