Trade and human rights: What does 'impact assessment' have to offer?

Human Rights Law Review

Volumn 8, Issue 4, 2008, Pages 587-615

  Harrison, James ^a   Golle, Alessa ^b  

^a UNIVERSITY OF WARWICK   (United Kingdom)

^b UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 57049188839     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngn026     Document Type: Article

References (142)

1. See the International Association for Impact Assessment for an overview of the range of fields covered, available at: http://www.iaia.org/modx/ [last accessed 15 July 2008]. For an overview of impact assessments in a range of different fields, see also Toner, 'Impact Assessment and Fundamental Rights Protection in EU Law' 31 European Law Review 316 at 316.
2. For example, from the methodological perspective, see Norwegian Agency for Development Cooperation (NORAD), Handbook in Human Rights Assessment: State Obligations, Awareness and Empowerment, February 2001, available at: www.norad.no/files/Hand book.pdf [last accessed 15 July 2008]. An example of a case study is Biekart, Thoresen and Ochaeta, 'Evaluation of the Dutch "Governance and human rights programme" in Guatemala 1997-2003', available at: http://www.humanrightsimpact.org/fileadmin/hria_resources/
3. See also Zwamborn, 'The Influence of Vietnamese-Swedish Development Co-operation on Democracy and Human Rights in Vietnam', (2006), available at: http://www.humanrightsimpact.org/fileadmin/hria_resources/
4. For example, Human Rights Watch, Chop Fine - The Human Rights Impact of Local Government Corruption and Mismanagement in Rivers State, Nigeria, January 2007, available at: http://hrw.org/reports/2007/nigeria0107/ [last accessed 15 July 2008] and Humanist Committee on Human Rights, 'Legal Protection At Risk - The Cumulative Impact of Antiterror Legislation', (2005), available at: http://www.humanrightsimpact.org/ fileadmin/hria_resources/Legal_protection_at_risk.pdf [last accessed 15 July 2008].
5. See, for example, International Centre for Human Rights and Democratic Development, Human Rights Impact Assessments for Foreign Investment Projects: Learning from community experiences in the Philippines, Tibet, the Democratic Republic of Congo, Argentina and Peru, (2007), available at: http://www.dd-rd.ca/site/PDF/publications/globalization/hria/ full%20reporty_ma_2007.pdf [last accessed 15 July 2008].
6. Other work in this area has been pioneered by the Danish Institute for Human Rights, see: http://www.humanrightsbusiness.org/ [last accessed 15 July 2008].
7. See, for example, Ministry of Foreign Affairs, The Netherlands, 'Evaluation of Nine Non-governmental Human Rights Organisations', (2004), available at: http://www.humanrightsimpact.org/fileadmin/ hria_resources/Evaluation_of_nine_non_governmental_ Human_Rights_organisations_01.pdf [last accessed 15 July 2008].
8. Landman, Studying Human Rights (Abingdon: Routledge, 2006) at 127-30.
9. Ibid. at 127.
10. Concluding Observations of the Committee on Economic Social and Cultural Rights regarding Ecuador, 7 July 2004, E/C.12/1/Add.100 at para. 56; Concluding Observations of the Committee on the Rights of the Child regarding El Salvador, 30 June 2004, CRC/C/15/Add.232 at para. 48; Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding Colombia, 2 February 2007, CEDAW/ C/COL/CO/6 at para. 29; Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding Philipines, 25 October 2006, CEDAW/C/PHI/CO/6 at para. 26; and Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding Guatemala, 2 June 2006, CEDAW/C/GUA/CO/6 at para. 32.
11. Office of the High Commissioner for Human Rights (OHCHR), Report of the High Commissioner on Human Rights, Trade and Investment, 2 July 2003, E/ CN.4/Sub.2/2003/9 (Report on Investment) at para. 12; OHCHR, Report of the Commissioner on the Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, 27 June 2001, E/CN.4/ Sub.2/2001/13 (Report on TRIPS) at para. 61; OHCHR, Globalisation and its Impact on the Full Enjoyment of Human Rights, 15 January 2002, E/ CN.4/2002/54 (Report on AoA) at paras 46 and 49; and OHCHR, Liberalisation of Trade and Services and Human Rights, 25 June 2002, E/ CN.4/Sub.2/2002/9 (Report on GATS) at 12, 67 and 72.
12. See Report of Special Rapporteur, Paul Hunt, on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, 'Mission to Peru', 4 February 2005, E/CN.4/2005/51/Add.3 at para. 50 and Addendum, 'Mission to the World Trade Organisation', 1 March 2004, E/CN.4/2004/49/Add.1 at 53.
13. Report of the Standing Committee on International Trade, Human Rights, the Environment and Free Trade with Colombia (Ottawa: Communication Canada, June 2008) at 44.
14. Stressing the importance of carrying out impact assessments, see, for example, 3-D, Trade-related intellectual property rights, access to medicines and human rights - Morocco, April 2006, available at: http://cmte.parl.gc.ca/Content/HOC/committee/392/ciit/reports/rp3580301/ ciitrp05/ciitrp05-e.pdf [last accessed 13 August 2008]; FIDH, Human Rights Impact Assessment of Trade and Investment Agreements concluded by the European Union, February 2008, available at: http://www.fidh.org/IMG/ pdf/positionpaperFIDH-HRIA.finalfevrier2008.pdf [last accessed 15 July 2008]; and 10th African Union Summit, Open letter to African Union Heads of State and Government Meeting in Addis-Ababa, available at: http://www.fidh.org/spip.php?article5137 [last accessed 15 July 2008]. The need for impact assessments was repeatedly stated by NGO actors at a 2007 Rights and Democracy Conference, see International Centre for Human Rights and Democratic Development, 'Reconciling Trade and Human Rights: The New Development Agenda', Conference Report, 28 and 29 May 2007, Ottawa, Canada, at 5, 11 and 14, available at: http://www.dd-rd.ca/ site/_PDF/publications/globalization/TradeHRConfPDF.pdf [last accessed15 July 2008].
15. Lang, 'Re-thinking Trade and Human Rights', (2007) 15 Tulane Journal of International and Comparative Law 335 at 403-4.
16. See, for example, by Dollar and Kraay, 'Growth is Good for the Poor', (2002) 7 Journal of Economic Growth 195, 'Spreading the Wealth', (2002) 81 Foreign Affairs 120,
17. and World Bank Policy Department,'Trade, Growth, and Poverty',Working Paper No. 2615 (2001).
18. For a critique of the Working Paper, see Rodrik 'Comments on "Trade, Growth, and Poverty," by D. Dollar and A. Kraay' (Harvard University, October 2000), available at: http://ksghome.harvard.edu/ ~drodrik.academic.ksg/Rodrik%20,on%20Dollar-Kraay.PDF [last accessed 16 July 2008].
19. Also see Gomes, The Economics and Ideology of Free Trade: A Historical Review (Cheltenham: Edward Edgar Publishing, 2003) at 313,
20. who gives references to a number of further critiques. Even those very much in favour of trade liberalisation argue that the pace at which one liberalises depends very much on factors specific to individual countries. See, for example, Bhagwati, Free Trade Today (Oxford: Oxford University Press, 2002) at 90.
21. For more detailed arguments about the need for an external critique of international trade law rules, see Harrison, The Human Rights Impact of the World Trade Organisation (Oxford: Hart Publishing, 2007), Chapter 3.
22. There is now an extensive literature from UN agencies, NGOs and academics that explore these links, examples of which are referenced at various points in this article. For a more comprehensive overview of the issues and references to relevant literature, see Harrison, supra n. 15.
23. For example, both CESCR and CRC raise the concern that a number of Member States are negotiating regional and bilateral trade agreements with strong forms of intellectual property protection and they need to ensure that they are not thereby reducing their ability to provide affordable essential medicines, particularly with regard to HIV/AIDS. See Concluding Observations of the Committee on Economic Social and Cultural Rights regarding Ecuador, 7 July 2004, E/C.12/1/Add.100 at para. 56; Concluding Observations of the Committee on the Rights of the Child regarding Peru, 14 March 2006, CRC/C/PER/CO/3 at para. 48; Concluding Observations of the Committee on the Rights of the Child regarding Thailand, 17 March 2006, CRC/C/THA/CO/2 at para. 57; Concluding Observations of the Committee on the Rights of the Child regarding Nicaragua, 21 September 2005, CRC/C/15/Add.265 at para. 17; Concluding Observations of the Committee on the Rights of the Child regarding the Philippines, 21 September 2005, CRC/C/15/Add.259 at para. 58; and Concluding Observations of the Committee on the Rights of the Child regarding El Salvador, 30 June 2004, CRC/C/15/Add.232 at para. 48. The UN Special Rapporteur on the Right to Health has raised similar concerns with regard to Peru, see Report of the Special Rapporteur, supra n. 10 at paras 47-51.
24. See, for example, Report on GATS, supra n. 9, which considers the impact of the General Agreement on Trade in Services on essential services such as health and education. Also the CRC has expressed concern that free trade agreements may negatively impact on social service budgets for children, 21 September 2005, CRC/C/15/Add.265.
25. See, for example, Report on AoA, supra n. 9,
26. and, in relation to the potential adverse consequences in relation to women, see Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding the Philippines, 25 October 2006, CEDAW/C/PHI/CO/6 at para. 25.
27. Although there have been a number of cases that have raised human rights issues, there have been no cases within the World Trade Organisation's dispute settlement system where human rights have been explicitly raised, and adjudicated upon. For a detailed examination of these issues, see Harrison, supra n. 15.
28. There is a growing body of European case law that addresses particular human rights and trade issues, but the application of these cases to the international system is questionable since they have involved conflicts between rights and freedoms specifically protected under European legal systems. See Case C-112/00, Eugen Schmidberger Internationale Transporte und Planzüge v Republic of Austria [2003] ECR I-5659, which concerned a conflict between free movement of goods and freedom of assembly, and Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609 (Omega Judgment), which concerned a clash between freedom to provide services and the principle of human dignity as protected under German Basic Law.
29. Although, the Committee on Economic, Social and Cultural Rights has in its Concluding Observations on Canada recommended that the State Party consider ways in which the primacy of Covenant rights may be ensured in trade and investment agreements, and in particular in the adjudication of investor-state disputes under Chapter XI of the North American Free Trade Agreement (NAFTA). See Concluding Observations of the Committee on Economic, Social and Cultural Rights with regard to Canada, 22 May 2006, E/C.12/CAN/CO/4 at para. 68. CEDAW has also commented on the potential impact of trade agreements on tabour rights in its Concluding Observations on the Philippines, 25 October 2006, CEDAW/C/PHI/CO/6 at para. 25 and Colombia, supra n. 8.
30. For example, farm workers losing their jobs as a result of trade liberalisation in developed countries will generally have access to safety nets (unemployment benefits, etc) that poorer developing countries cannot afford. The right to development is clearly also relevant in this context, but has not been the subject of any discussion in the context of impact assessment, possibly because of a lack of clarity on how to define its substantive content.
31. In the concluding section of this article, we will explore the need to weigh and balance any violations of economic, social and cultural rights which HRIAs of trade agreements identify with other rights-based benefits of the same trade agreements.
32. Report on GATS, supra n. 9 at paras 67; OHCHR, Sub-Commission on the Promotion and Protection of Human Rights, Note by the Secretariat, 'Mainstreaming the Right to Development into International Trade Law and Policy at the World Trade Organization, 9 June 2004, E/CN.4/Sub.2/2004/ 17 at para. 24; and OHCHR, Analytical study of the High Commissioner for Human Rights on the fundamental principle of non-discrimination in the context of globalization, 15 January 2004, E/CN.4/2004/40 (Report on Non-discrimination) at para. 55.
33. Report on GATS, supra n. 9 at paras 12 and 67
34. Report on Investment, supra n. 9 at para. 63
35. and Hunt, supra n. 10 at para. 53.
36. Report on Investment, supra n. 9 at para. 28
37. OHCHR, Analytical study of the High Commissioner for Human Rights on the fundamental principle of participation and its application in the context of globalization, 23 December 2004, E/CN.4/2005/41 (Report on Participation) at paras 26 and 50
38. Report on Non-discrimination, supra n. 24 at para. 55
39. Report on TRIPS, supra n. 9 at para. 61
40. Report on GATS, supra n. 9 at paras 12, 67 and 72
41. and Hunt, supra n. 10 at para. 53.
42. Report on AoA, supra n. 9 at para. 47,
43. and Report on Non-discrimination, supra n. 24 at para. 55.
44. Hunt, supra n. 10 at para. 54
45. Report on GATS, supra n. 9 at para. 50
46. and Report on Non-discrimination, supra n. 24 at para. 55.
47. Report on GATS, supra n. 9 at para. 72.
48. Ibid. at paras 67 and 72.
49. Report on AoA, supra n. 10 at para. 47,
50. and Report on GATS, supra n. 10 at para. 67.
51. Walker,'Human Rights Impact Assessments of Trade-related Policies' in Gehring and Segger (eds), Sustainable Development in World Trade Law (The Hague: Kluwer, 2005) has provided a good general framework of issues that need to be considered by any team undertaking an HRIA of a trade agreement.
52. In particular, see Chapters 4, 5 and 8 of Landman, supra n. 6.
53. It is also a type of assessment which is considering an indirect or unintentional impact (trade agreements do not directly aim at changing the human rights situation in any given country), see Landman, supra n. 6 at 126, for more on the difference between direct and indirect assessment.
54. Making this point with regard to the policies/projects dichotomy, see Walker, supra n. 32 at 222. For an evaluation of the issues faced in HRIAs of human rights projects, see Andreassen and Sane, 'What's the Goal? What's the Purpose? Observations on Human Rights Impact Assessment?', (2007) 11 The International Journal of Human Rights 275. For a range of methodological frameworks and their application in a range of such studies, see http://www.humanrightsimpact.org/ [last accessed 15 July 2008]. For categorisations of HRIAs into those that are direct/intentional and those that are indirect/unintentional, see Landman, supra n. 6 at 127.
55. For a series of articles analysing various aspects of impact assessments of trade agreements, see Impact Assessment and Project Appraisal, Vol. 24, No. 4, December 2006.
56. For the most recent framework, see European Commission for Trade, Handbook for Trade Sustainability Impact Assessment, March 2006, available at: http://trade.ec.europa.eu/doclib/docs/2006/march/ tradoc.127974.pdf [last accessed 15 July 2008], which builds on previous methodologies including Kirkpatrick and Lee,'Further Development of a Sustainability Impact Assessment of Proposed WTO Negotiations, Final Report to the European Commission, 5 April 2002, available at: http://www.sia-trade.org/wto/Phase3/final.pdf [last accessed 15 July 2008].
57. UNEP, Reference Manual for the Integrated Assessment of Trade-Related Policies (New York: United Nations, 2001), and updated as a result of country studies in the agricultural sector in UNEP, Handbook on Integrated Assessment of Trade-related Measures: The Agriculture Sector (UNEF, 2005).
58. For example, Sinti Techan Network, The Free Trade Agreement Between the United States and Central America: Economic and Social Impact (2003); Health Ministry of Peru, Evaluacion de los potenciales efectos sobre acceso a medicamentos del tratado de libre comercio que se negocia con los Estados Unidos de America (2005); Misión Salud, La Bolsa y la vida: Impacto de la agenda Norte Americana paraelo TLC sobre el acceso a medicamentos y la salud publica (2004); The Pan American Health Organization, Regional Office of the World Health Organization and IFARMA, Modelo prospectivo del impacto de la propriedad intelectual sobre el acceso de medicamentos en Colombia (2004); The Pan American Health Organization, Regional Office of the World Health Organization and IFARMA, Impacto de fortalecer las medidas de Propriedad Intellectual como consequencia de la negociacion de un Tratado de Libre Comercio con los Estados Unidos (2005). For electronic links to these reports, see: http://www.nottingham.ac.uk/law/hrlc/business-trade/ Human_Rights_ImpactAssesments.php [last accessed 15 July 2008].
59. For example, Dee 'The Australian-US Free Trade Agreement' (Canberra: Australian National University, 2005) and Forsyth and Plange, An Assessment; Social Impact Assessment of Membership of the Pacific Free Trade' (University of the South Pacific, 2001).
60. For a full list, see the table available at: http://www.nottingham.ac.uk/ iaw/hrlc/business-trade/Human_Rights_Impact_Assesments.php [last accessed 15 July 2008].
61. Blanco, 'Su stainability Impact Assessment of Trade Policy and its Application in the Context of Latin America, (2006) 24 Impact Assessment and Project Appraisal 285 at 292.
62. Ibid. at 292.
63. See, for example, Abbott, 'The WTO Medicines Decision: The Political Economy of World Pharmaceutical Trade and the Protection of Public Health, (2005) 99 American Journal of International Law 317; and Haochen Sun, 'The Road to Doha and Beyond: Some Reflections on the TRIPS Agreement and Public Health, (2004) 15 Furopean Journal of International Law 123. For an NGO perspective, see Oxfam, Patents Versus Patients; Five Years after the Doha Declaration, Briefing Paper 95, November 2006.
64. For example, Misión Salud, La Balsa y la vida: Impacto de la agenda Norte Americana para elo TLC sabre el acceso a medicamentos y la salud publica (2004); The Pan American Health Organization, Regional Office of the World Health Organization and IFARMA, Modelo prospectivo del impacto de la propriedad intelectual sabre el acceso de medicamentos en Colombia (2004); The Pan American Health Organization, Regional Office of the World Health Organization and IFARMA, Impacto defortalecer las medidas de Propriedad Intellectual Como consequencia de la negociacion de un Tratado de Libre Comercio con los Estados Unidos (2005); and Health Ministry of Peru, Evaluacion de los potenciales efectos sabre acceso a medicamentos del Tratado de Libre Comercio que se negocia con los Estados Unities de America (2005), available at: http://www.nottingham.ac.uk/law/hrlc/ business-trade/Human_Rights_Impact_Assesments.php [last accessed 15 July 2008].
65. See, for example, Health Ministry of Peru, supra n. 39 at 73. The assessment goes into great detail on the economic analysis of the impact of the agreement, but only briefly touches on the social impact (at 197 and 222). It states that the potential rise in prices which the agreement would lead to, would bring about a loss of well-being for the population but it goes into no more detailed analysis of the degree of suffering caused.
66. See UNEF, Manual supra n. 38 at 39
67. and UNEP, Handbook, supra n. 38 at 17.
68. See UNEF, Handbook, supra n. 38 at 28f. As an example, see Overseas Development Institute, 'Sustainability Impact Assessment of Proposed WTO Negotiations, Final Report for the Agriculture Sector Study, 22 April 2005, at 13, available at: http://www.sia-trade.org/wto/ Phase3B/Reports/FINALAgrSIASeptO5.pdf [last accessed 15 July 2008]. The indicators for equity'are income distribution, for example by gender, quality of employment, land tenure and ownership.
69. See UNEP, Handbook, supra n. 38 at 32.
70. Lee and Kirkpatrick, 'A Pilot Study of the Quality of European Commission Extended Impact Assessments', Impact Assessment Research Centre Working Paper 8, October 2004. This research concerns not only trade SIAs, but a wide range of EU SiAs in different fields.
71. See Statement of Civil Society Organisations, EU Trade Sustainability Impact Assessments: A Critical Review, October 2006, at 6, and Richardson, A "Critique" of the ECs WTO Sustainability Impact Assessment Study and Recommendations for Phase III', (IDPM, University of Manchester, 2000) at 3.
72. See discussion of this in Section 5 below regarding Paasch, Garbers and Hirsch, Trade Policies and Hunger: The Impact ofTrade Liberalisation on the Right to Food qfRice Farming Communities in Ghana, Honduras and Indonesia (Ecumenical Advocacy Alliance, 2007) (EAA Study), available at: http://www.e-alliance.ch/trade-policiesandhunger.jsp [last accessed 15 July 2008].
73. Kirkpatrick, George and Scrieciu, Final Global Overview Trade SIA of the Doha Development Agenda, July 2006, available at: http://www.sia-trade.org/wto/FinalPhase/FINAL-OVERVIEWJuL2006.pdf [last accessed 15 July 2008].
74. Ibid. at 58, for example, the authors state that:'In Bangladesh, East Africa, and much of Sub-Saharan Africa the number of unskilled manufacturing jobs falls'.
75. Overseas Development Institute, supra n. 48 at 38, where it states: As the costs of adjustment fall predominantly on producers, they will fall predominantly on rural areas. As small (semi-) subsistence producers tend to be less competitive, they are likely to lose domestic market share to imports, whereas commercial producers are the most likely to be able to respond to increased competition. Some losses among domestic producers are likely, although there is no strong reason to believe that adverse effects will be more severe for small-holders (who often display remarkable resilience) than for larger, more commercial farms.'
76. Mayrand, 'Integrated Assessment of Trade-related Policies: Agricultural Trade Liberalisation and the Convention to Combat Desertification, (2006) 24 Impact Assessment and Project Appraisal 311 at 311.
77. Carpentier, 'NAFTA Commission for Environmental Cooperation: Ongoing Assessment of Trade Liberalization in North America', (2006) 24 Impact Assessment and Project Appraisal 259 at 270.
78. See, for example, UNEF, supra n. 38 at iv.
79. Making this point with regard to South American countries, see Blanco, supra n. 42 at 292.
80. Kirkpatrick and George, 'Methodological Issues in the Impact Assessment of Trade Policy: Experience from the European Commission's Sustainability Impact Assessment (SIA) programme', (2006) 24 Impact Assessment and Project Appraisal 325 at 330-1.
81. Maltais, Nilsson and Persson, Sustainability Impact Assessment of WTO Negotiations in the Major Food Crops Sector (Stockholm: Stockholm Environment Institute, 2002), available at: http://www.sei.se/dload/2002/ SIA-WTO-CROPS-Final.pdf [last accessed 15 July 2008]. Case studies were conducted in food importing countries (Egypt and Senegal) and food exporting countries (India, Argentina and Indonesia). Although it should be noted that the case studies used here were de sk-based' and utilised no local partnerships or consultations.
82. See, for example, Nadal, The Environmental & Social Impacts of Economic Liberalisation on Corn Production in Mexico (El Colegio De Mexico, September 2000), available at: http://www.oxfam.org.uk/ what.we.do/issues/livelihoods/downloads/cornmexico.pdf [last accessed 15 July 2008], which pays particular attention to how NAFTA affects different parts of the population in different ways.
83. UNEF, supra n. 38 at 29f, including discussion of such tools as benefit cost analysis, risk assessment, multi-criteria analysis, extended domestic resource cost analysis, life cycle analysis, global commodity chain analysis and scenario building.
84. Also recommending consideration of a wide range of assessment methodologies in the specific context of HRIAs of trade agreements, see Walker, supra n. 32 at 234.
85. For example,'Impacts of the North American Free Trade Agreement' (Picard, Alberto Arroyo, 2003), available at: http://quest.quixote.org/ sites/quest.quixote.org/files/pdfs/albertoarroyo.pdf [last accessed 15 July 2008] at 5-6: '...the North American Free Trade Agreement is part of the problem and not the solution.
86. This is what we are seeking to demonstrate in this document! See, more generally, Vogl, Potential Impact of the Central America Free Trade Agreement on the Agricultural Sector and Rural Poverty in Nicaragua, May 2003, available at: http://quest.quixote.org/sites/quest.quixote.org/ files/Pdfs/cafta-nicaragua.pdf [last accessed 15 July 2008].
87. Statement of European Civil Society Organisations, EU Trade Sustainability Impact Assessments: A Critical View, October 2006, at 3, available at: http://www.foeeurope.org/publications/2006/ siastatement-eucivilsociety-oct2006.pdf [last accessed 15 July 2008].
88. Carpentier, supra n. 57 at 259-61.
89. See, for example, on South American Impact Assessments, Blanco, supra n. 42 at 290-2
90. and criticising the extent of participation in a number of EU impact assessments, Toner, 'Impact Assessment and fundamental rights protection in EU law', 31 European Law Review 316 at 332.
91. See, for example, Statement of European Civil Society Organisations, supra n. 64 at 5.
92. As a result of these criticisms, the SIA Handbook (at 3) contains extensive recommendations on appropriate mechanisms for consulting relevant actors including organising more local workshops in partner countries. Additional suggestions have been made by other key actors, for example, Kirkpatrick, supra n. 59 at 327, who says greater efforts in encouraging public participation could also be made by, for example, translating official documents into the local language or by raising awareness at the local level.
93. Also see Cherfane,'How to Ensure a Better Participation of Stakeholders in Sustainability Impact Assessments: Illustrative Examples from the SIA/ EMFTA, available at: http://css.escwa.org.lb/25mar06/10.pdf [last accessed 15 July 2008].
94. George and Goldsmith, 'Impact Assessment of Trade-related Policies and Agreements: Experience and Challenges, (2006) 24 Impact Assessment and Project Appraisal 254 at 256.
95. National Audit Office, Evaluation of Regulatory Impact Assessments 2006-7 (London: The Stationery Office, 11 July 2007).
96. National Audit Office, supra n. 69 at 4, Executive Summary.
97. 'Blunt Scissors', The Economist, 14 July 2007, at 37.
98. See, for example, Report on AoA, supra n. 9 at para. 47.
99. We here utilise a narrow definition for the term impact assessment as provided in Section 1 above.
100. Thailand National Human Rights Commission (sub-committees), Report on Results of Examination of Human Rights Violations (2006) (TNHRC Report) on file with author. This was reported as the first HRIA of a trade agreement by several sources, see: The National Human Rights Institutions Forum, Human Rights Impact Assessment of the US-Thai Free Trade Agreement, 22 January 2007, available at: http://www.nhri.net/ news.asp?ID=1115 [last accessed 15 July 2008]
101. and Third World Network,'Thai Human Rights Commission criticises FTA with US, available at: http://www.bilaterals.org/ article-print.php3Pid-article=7012 [last accessed 15 July 2008].
102. Free Trade Agreements: Impact on Human Rights, Bangkok, 17-19 January 2007.
103. The author has made a number of enquiries to the Thailand National Human Rights Commission, but has not had a substantive response. The Third World Network, who reported on the release of the draft report, are also unaware when the final report will be published. The United States stopped negotiating the FTA with Thailand after the military coup, and so it may be that the final report will not be published.
104. FAA Study, supra n. 52.
105. Ibid. at Section 3.3.
106. The negotiation process is found to be in violation of certain rights, although these findings relate only to the Thai Constitution (TNHRC Report, supra n. 74 at 65).
107. The proposed intellectual property provisions are found to be in violation of the right to health as protected in the Constitution (ibid. at 59), but in other areas there is no mention of human rights at all.
108. THNRC Report, supra n. 74 at 26.
109. Ibid. at 59.
110. Ibid. at 58-9.
111. EAA Study, supra n. 52, Chapter 1 sets out the relevant human rights obligations, Chapter 2 sets out the methodological framework, and the conclusions of Chapters 4, 5 and 6 analyse the extent to which these human rights obligations have been met for each country case study.
112. Ibid. at 25-8.
113. Ibid. at 28.
114. Ibid. at 52f.
115. Ibid. at 75f and 103f.
116. Ibid. at 80f and 103f.
117. Ibid. at 121.
118. Ibid. at 28. One could, however, argue about the validity of this indicator from the human rights perspective. Does the 'reduction', even if involuntary, have to be to below a specific minimum level before a human rights violation can be found?
119. In the Indonesian Study for instance, only brief mention is made of reduction in food quantity and quality; see ibid. at 107.
120. TNHRC Report, supra n. 74 at 5.
121. Ibid. at 18.
122. Ibid. at 5,18 and 41 respectively.
123. See also at 42 for strong opinions on US motivation for negotiating FTAs.
124. Report of Turku Expert Meeting on Human Rights Indicators, 10-13 March 2005, Turku/Åbo Finland, at 2, available at: http://web.abo.fi/instut/imr/research/seminars/indicators/Report.doc [last accessed 15 July 2008].
125. On the importance of indicators for HRIAs, see Andreassen and Sano, supra n. 35 at 278.
126. OHCHR, 6 June 2008, HRMI/MC/2008/3.
127. See, for example, illustrative indicators on the right to food, in OHCHR, Report on Indicators for Promoting and Monitoring Implementation of Human Rights, supra n. 97 at 24, which appear largely appropriate for the trade law context, although the availability of data with regard to a number of indicators may be a problem.
128. See OHCHR, Report on Indicators for Promoting and Monitoring Implementation of Human Rights, supra n. 97 at 25, which includes indicators relating to sexual and reproductive health, child mortality and health care, natural and occupational environment, prevention, treatment and control of diseases and accessibility to health facilities and essential medicines.
129. EAA Study, supra n. 52 at 25 (methodological approach).
130. See also, at 28, A direct impact on incomes of farmers can only be assumed if they face direct competition with imports' so the report goes to great length to make the case for this link by, for example, assessing the extent to which rice of communities evaluated are competing against foreign imported rice.
131. But attempting to do so, see EAA Study, supra n. 52 at 66.
132. Hunt and MacNaughton, 'Impact Assessments, Poverty and Human Rights: A Case Study Using the Right to the Highest Attainable Standard of Health', (UNESCO, 31 May 2006) at 13, available at: http://www.who.int/ hhr/Series.Impact%20Assessments.Hunt.MacNaughton1.pdf [last accessed 15 July 2008].
133. See, for example, Article 25, Universal Declaration of Human Rights 1948; Article 25, International Covenant on Civil and Political Rights 1966; Articles 7 and 14(2), Convention on Elimination of Discrimination Against Women 1979; and Article 5, International Convention on the Elimination of All Forms of Racial Discrimination 1965.
134. The OHCHR has produced a report on the principle of participation and its application in the context of globalisation: See Report on Participation, supra n. 26, which states the need for HRIAs as a mechanism for improving participation in the context of globalisation, but it does little to enhance the debate about what the appropriate mechanisms for participation within HRIA methodologies should be (see paras 24-8).
135. For example, see Howse, 'Human Rights in the WTO: Whose Rights, What Humanity? Comments on Petersmanrf, (2002) 13 European Journal of International Law 651 at 656, who states at fn 7: At the World Trade Forum in Berne last August, where many of the leading traditional WTO experts gathered to address the question of the WTO law and human rights, several of the most eminent of them even questioned whether any human rights were sufficiently well understood or clearly embodied in international law so as to be relevant in the operation of the WTO.'
136. Making a similar point with regard to EU impact assessments, see Toner, supra n. 66 at 337.
137. Lang, 'Re-thinking Trade and Human Rights'. (2007) 15 Tulane Journal of International and Comparative Law 335 at 393-4.
138. Discussing the propensity for current human rights discourse to be
139. Overseas Development Institute, supra n. 48 at 13,
140. and EAA Study, supra n. 52, in particular in relation to the case study in Ghana.
141. Walker, supra n. 32 at 225.
142. For a fuller discussion of how domestic policy choices may be made in ignorance of the real ambit of trade law rules, see Harrison, supra n. 15, with arguments relating to this point summarised in Chapter 10.