Aladdin Benali | February 24, 2020
Before Brexit, the UK participated in EU policies that harnessed its power as the world’s largest trading bloc to infuse ethical and normative objectives into trade agreements. Leaving the EU means now for the first time in 40 years, international trade policy will be solely driven by the UK government. Under the EU (Withdrawal) Act 2020, the UK now has the power to negotiate ‘Free Trade Agreements’ (FTAs) with ‘third’ non-EU countries during the transition period until enter into force 31 December 2020.
Not enough attention, however, has been paid to the challenges the UK faces in promoting human rights across the world through unilaterally conducting international trade policy.
Trade has always been about more than simply exchanging goods and services. International trade policy these days captures all aspects of human life and shapes the legal economic and political environment. EU policymakers now possess a sophisticated array of instruments to promote human rights in external trade policy. Such rights include labour rights, indigenous and cultural rights transparency and anti-corruption, and environmental standards.
What sort of policies does the EU already have in place?
One policy is to incorporate human rights clauses in all new trade agreements. Such a clause looks something like this:
“Respect for human rights, democratic principles and the rule of law … shall underpin the domestic and international policies of the Parties and constitute the essential elements of this Agreement.” (Cotonou Agreement with ACP countries, Article 9(2))
Another policy has been to proactively ensure developing countries pay attention to respecting human rights. Under the Generalised Scheme of Preferences Regulation (No 978/2012), the EU may grant unilateral preferential trade access to the single market on the condition that they respect human rights and basic labour rights norms. For example, the ‘Everything But Arms’ (EBA) policy, has given 49 the world’s poorest countries like Haiti or Cambodia duty-free and quota-free exports access to the largest market in the world.
The UK now faces a hard reality: When it comes to effectively negotiating the inclusion of rights in trade negotiations, size matters. Decreased bargaining power as a single nation outside the EU translates into severe challenges in unilateral negotiations.
Without the EU
Faced also the time pressure of the transition period, the UK will be tempted to omit key protections to chase quick trade deals. Some countries are already taking aim to weaken Britain’s rights standards in exchange for progress on post-Brexit trade. Experts fear that the Conservative government is neither willing nor able to incorporate adequate rights provisions as Britain ceases to participate in EU rights-based trade policy.
However, Brexit need not mean a deterioration of rights protections. The UK has two key opportunities in negotiating its own trade deals to achieve a truly progressive agenda compatible with UK’s international obligations, like those under the European Convention on Human Rights (“ECHR”).
First, the UK now has the power to establish a gold standard for human rights after the transition period. While having already committed to continuing the GSP, the UK has failed to maintain human rights protections in most Continuity Agreements signed. Future clauses should, for example, contain robust clauses that allow for suspension upon non-adherence in line with the Joint Committee on Human Rights’ recommendations.
Second, the government can improve on shortcomings of the design and execution of the existing EU rights framework. There has been considerable academic criticism of the consistency of the EU’s conditionality and monitoring mechanisms and incentives/deterrents to conditionality clauses. Oversight must be shared with parliament which surpasses government’s consultation obligations under Part 2 Constitutional Reform and Government Act 2010 where necessary.
What happens if the UK fails to develop a coherent and rights-based trade policy? Other countries are ready to use their leverage to promote their priorities. Trump’s US will seek to undermine the historic values-based trade policy to obtain domestic objectives, like reducing immigration and protecting the voter base. The UK must abstain from this race to the bottom and develop and maintain a coherent rights agenda in conducting trade policy in this year’s negotiations.