Human Rights Impact Assessment of Trade Agreements: Analysis and Critiques of Methodology

Abstract: The profound impacts on human rights brought about by international and regional trade agreements have increasingly been recognized by scholars in the fields of human rights and trade, as well as international organizations and civil societies. Most notably, the intersection between human rights and trade has been reaffirmed by the United Nations, evidently in the reports by the United Nations High Commissioner for Human Rights dated back to the early 2000s. Discourse on human rights impacts of trade agreements has recently developed further. Examples to this development can be found in the latest debate on two major international free trade agreements - the Transatlantic Trade and Investment Partnership (TTIP) between the European Union and the United States and the Trans-Pacific Partnership (TPP). They have attracted significant publicity and ignited public debates regarding their potential impacts on human rights in the countries that are partners to the agreements. Opponents to these trade agreements have expressed concerns on their potential human rights impacts and called for thorough human rights impact assessments to be conducted on the agreements. Human rights impact assessment (HRIA) has been identified by many as the most relevant tool to examine the impacts that trade agreements may have upon human rights. While it has been developed and utilized rather extensively in the private sector to measure human rights impacts of business operation, HRIA to measure the impacts of trade agreement remains underdeveloped regarding its methodology despite the growing human rights concerns and extending scope of impacts of international free trade agreements in the recent years. The gap between the expanding need for HRIA of trade agreements and the limited available methodologies has prompted this thesis to analyze the existing methodologies of HRIA of trade agreements. By carefully identifying their contributions as well as shortcomings, the thesis will then determine the best approach to assess the human rights impacts resulted from international trade agreements. This thesis first starts off by establishing the link between human rights and trade, which serves as the basis to argue for the necessity of a HRIA of Trade Agreements. It will then address the values that HRIA can bring in comparison to other impact assessments. Once the linkage between human rights and trade is clear, and the values of HRIA are identified, the existing approaches and methodologies of HRIA of trade agreements will be analyzed and evaluated on the basis of the proclaimed “added values” of HRIAs that are discussed earlier. The thesis argues that existing methodologies of HRIA of trade agreements do not live up to several key cross-cutting human rights principles that they claim to embody and they fail to deliver the added values that HRIA promised. By offering critiques of existing methodologies of HRIA of Trade Agreements and examining the most prominent alternative approach to HRIA of Trade Agreements – the integrated impact assessment, the thesis advocates for the former approach, arguing that while it is largely flawed, the existing methodologies are mostly constrained by resource availability which can be resolved, while the alternative approach entails much higher risks of watering down fundamental human rights principles and rendering HRIA meaningless. Methodologies of HRIA of Trade Agreement leave a lot to be desired, however, for the time being, they can be improved and operational given the right attentions at the right time and place.