4The Case for Standard Human Rights Clauses
30.As the Foreign and Commonwealth Office has set out in the letter from Lord Ahmad to the Chair:
“The UK’s exit from the EU provides us with an opportunity to explore how we can most appropriately use free trade agreements to pursue broader international objectives while recognising the need for a balanced and proportionate approach. The Government is exploring all options in the design of future trade and investment agreements, including relevant human rights provisions within these”.31
31.As the Institute for Human Rights and Business submission noted, human rights protections clauses, and clauses to protect labour standards (including against modern slavery) are increasingly the norm in international agreements:
“Increasingly, countries are relying on trade agreements to advance foreign policy goals, which include promotion and protection of human rights. Recent studies have shown that countries including the United States, Canada, New Zealand, Australia, Chile, Japan, and the European Union have incorporated clauses and sections in their trade agreements with many countries that support specific goals, in particular implementation of adequate labour conditions and protection of labour rights, transparency and anti-corruption measures, environmental standards, and in some instances, standards with respect to specific commodities whose trade bears an impact on human rights.
Labour rights protections are often part of bilateral agreements. One study shows that nearly half of the trade agreements signed since 2008 had labour provisions, and over 80% of agreements entering into force since 2013 have had labour provisions. Similarly, more than two-fifths of trade agreements concluded since 2000 have incorporated anti-corruption and anti-bribery components which go beyond WTO rules. Some agreements have also included guarantee for political participation and protection of indigenous and cultural rights.”32
32.Following a stand-off between the European Parliament (EP), the European Commission and the Council of the EU in the early 1990s, an agreement was reached that all EU-third country agreements would contain “political clauses”, which the EP had insisted on. These “political clauses” would set out prerequisites for cooperation that related to human rights standards—as well as other prerequisites relating to democracy and non-proliferation (in particular of Weapons of Mass Destruction and Small Arms and Light Weapons). Were a party to such an Agreement to violate human rights or democratic principles, then the other party could take “appropriate measures” (counter-measures) under the Agreement. The relevant EU website reflects this position: “All agreements on trade or cooperation with non-EU countries (over 120 now) include a human rights clause stipulating that human rights are central to relations with the EU. The EU has imposed sanctions for human rights breaches in a number of instances.”33 A recent Study by the European Parliament provides useful background information.34
33.As the Northern Ireland Human Rights Commission noted:
“The Commission supports the use of standard exemption clauses to ensure that commitments entered into under international agreements do not undermine the UK Government’s commitment to human rights […]. The use of standard exemption clauses may provide mutual reassurance between the UK and potential signatories to agreements that the rights of their respective citizens will be protected when implementing international agreements.”35
34.Many commentators consider that there is a strong case for standard exemption and suspension clauses, but that these need to work together as a package of human rights clauses and that, importantly, they need to be enforceable. Our witness Dr Sam Fowles noted three reasons why standard exemption and suspension clauses were important: (i) international agreements are legally self-contained, so human rights protections must be explicitly written into the text of that agreement; (ii) international agreements create special classes of rights, so human rights need equivalent protection under the agreement; and (iii) human rights arguments are rarely considered unless there is an explicit requirement to do so.36 However, he expressed some caution at over-reliance on such clauses alone:
“An exclusion clause alone will have only limited impact in protecting human rights because it acts only as a “shield”. Other rights-protecting clauses, such as investment protection clauses, can also act as a ‘sword’ by creating a cause of action against the other party. This means that human rights remain less powerful (in terms of providing an incentive for action) than other rights protected by international agreements. This is an example of a wider issue of equality of arms in public international law. The rights of individuals (including human rights) are formally proclaimed in a manner similar to other rights (such as the rights of international investors) but cannot be enforced in an equivalent manner.
Suspension clauses may go some way to addressing this issue if they are drafted sufficiently strongly. The type of suspension clause used in many EU-third state trade agreements permits a party to adopt “appropriate measures” if the other party fails to adhere to a human rights clause. While this goes some way to creating a “sword” for human rights, it is not equivalent to that available for investment rights because (a) it does not offer comparable, specific sanctions and (b) it can only be enforced by states. If the UK is to ensure genuine human rights protections are included in international agreements it must include in those agreements both [an] exclusion clause and some form of positive human rights protection that is enforceable in a manner equivalent (although not necessarily the same) to the rights of investors.”37
35.Amnesty International UK was clear on the need for an exemption clause:
“Human rights exemptions clauses are necessary to reflect the fact that international agreements can have widespread impacts, from working conditions to healthcare. Without such clauses, other States and parties to such agreements (e.g. multinational enterprises) might pursue conflicting objectives, such as hindering regulation designed to safeguard human rights in the public interest for the benefit of unscrupulous private sector operators.”38
36.Other submissions argued the need for specific standard clauses in international agreements to protect specific human rights, such as requiring a specific reference to compliance with children’s rights as set out in the United Nations Convention on the Rights of the Child, as well as the rights of children set out in UK legislation.39 Others highlighted the importance of standard clauses to require that the human rights of disabled people were respected, especially in relation to access to products.40
37.However, for the reasons set out in the chapter above, there are reasons why a one-size-fits-all approach to standard clauses for all international agreements would not work. It might instead be better to have standard clauses for trade and investment agreements, standard “essential elements” clauses for overarching agreements (or indeed all agreements), and tailored clauses for other specific agreements such as those relating to extradition, mutual legal assistance and data-sharing.
38.As Dr James Harrison noted:
“[…] there are a number of reasons to be concerned about relying on standard clauses to address many of the human rights issues […] including:
- The key human rights concerns in different trade relationships/partner countries will be different and so human rights provisions may benefit from being tailored to address those issues.
- Effective human rights clauses are about more than just text on a page. They normally require institutional structures, resources, political will etc. to make them effective. Recommendations which focus only on the clauses themselves rather than on actors, processes, resources etc. are unlikely to effectively address human rights issues on the ground.
- When considering the formulation of standard human rights clauses, officials will often rely on existing practice from which to derive their own models. Given that the UK is currently a signatory to EU trade and investment agreements, this is the most likely source of inspiration. The deficiencies of EU practice have been highlighted […] Given the UK’s heavily reduced post-Brexit economic leverage, even more careful scrutiny is required of what human rights clauses on paper will actually achieve in practice.”41
39.The Law Society of Scotland has recommended that the UK continues the EU’s system of using the Generalised System of Preferences (GSP)42 in the context of trade agreements to promote human rights in third countries, through making GSP preferences contingent on those countries meeting human rights conditions.43
40.Current trade agreements binding on the UK through the EU contain specific clauses to promote and protect human rights, including suspension clauses to suspend an agreement if core human rights standards are not met. The habitual inclusion of standard clauses for human rights protections such as suspension clauses, and exemption clauses to prevent an agreement being misused to override human rights protections, should not slip following Brexit. Moreover, lessons should be learned from the EU experience as to how best to use and enforce such clauses.
41.It is clear that there are many human rights concerns that arise in different agreements and many different model clauses. Moreover, no standard clause is effective without an adequate enforcement mechanism. However, this does not mean that standard human rights protections cannot be effective. Standard human rights protections should be included in all agreements, with exact clauses tailored depending on the subject-matter of the agreement.
42.Exemptions clauses should also be included in all agreements, providing that nothing in the agreement prevents a party to the agreement from taking measures to protect or promote public morals (including human rights standards).
43.Suspension clauses should be included in all framework agreements - and included in trade agreements where not otherwise covered by a framework agreement. Such suspension clauses should highlight the importance of respect for human rights, including the Universal Declaration of Human Rights and other international agreements binding on the parties, and should provide for suspension of the agreement in case of a significant breach of these standards.
44.Specialised human rights protections clauses should be included to protect human rights in specific sectoral agreements. This should include specific clauses in extradition agreements, mutual legal assistance agreements, data sharing agreements and agreements where labour rights or modern slavery could be at risk. The Government should consult on a set of standard clauses to be included in all relevant agreements.
32 Institute for Human Rights and Business (HIA0005). Full references contained in this quotation can be found in the submission published online.
33 European Union, Development and Humanitarian Aid, Human Rights, EU Charter of Fundamental Rights
34 European Parliament, Director-General for External Policies, Policy Department, The European Parliament’s role in relation to human rights in trade and investment agreements, 2014
41 University of Warwick (HIA0020). One study of EU human rights clauses concluded that any results they produce in relation to third countries is restricted to countries over which the EU holds substantial economic leverage. See Velluti, above n.6. Instead of speaking on behalf of a potential market of more than 500 million consumers, the UK now government now speaks on behalf of a market of 65 million. This diminishes the UK’s bargaining power. Claims that this bargaining power will be used to protect and promote human rights rather than commercial interests should be scrutinised very carefully.
42 The EU’s Generalised System of Preferences allows vulnerable developing countries to pay fewer or no duties on exports to the EU, giving them vital access to the EU market and contributing to their growth. For further information see: European Commission, Generalised Scheme of Preferences (GSP)
Published: 6 March 2019