Human Rights Provisions in Free Trade Agreements: Do the Ends Justify the Means?

Numerous Free Trade Agreements (FTAs) contain provisions imposing human rights-related obligations, particularly in the case of agreements between the European Union and a developing country (often a former colony). Such obligations often consist of hortatory “best endeavors” language rather than legally binding provisions. Even the small number of provisions that are binding are very rarely enforced. Furthermore, even if an FTA features human rights-related provisions, it may contain other terms that have negative implications for human rights. Thus, including human rights provisions in FTAs will not necessarily result in better human rights outcomes. There are additional reasons to be cautious about the potential for FTAs to improve the circumstances of developing countries. There is an inherent inequality in FTA negotiations between developed and developing countries. And trade agreements vary significantly in the degree to which they provide for financial, technical, logistical, and other forms of assistance to their developing country participants. Given the unfavorable bargaining power developing countries face in FTA negotiations with developed country partners and the trend towards negotiating FTAs that are not well-aligned with poorer countries’ interests, FTAs may not be a suitable forum for addressing human rights-related concerns. Furthermore, even though the European Union’s FTAs among others contain human rights clauses, such FTAs by and large do not include the countries with the worst human rights abuses. While human rights violations occur in all countries, there is a significant correlation between level of economic development and such abuses. The countries that are considered to have the highest levels of corruption and human rights abuses are not, by and large, participating in FTAs or other reciprocal trade agreements, at least in part because they are not members of the WTO. While the WTO is not a panacea for developing countries, it may provide the better space – as compared to FTAs – for achieving objectives in furtherance of human rights objectives