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ECPR

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Human Rights Impact Assessments of Trade and Investment Agreements: A Critical Assessment

Globalisation
Governance
Human Rights
UN
Investment
Trade
European Union

Abstract

Around 2011, a number of United Nations (UN) and European Union (EU) guidelines have been decided upon to better protect the human rights (HR) of all actors connected to the global value chains (GVCs). These guidelines aim at providing new instruments for the governance of GVCs. They include: the UN Guidelines on Business and Human Rights, and the UN Guiding Principles on Human Rights Impact Assessments (HRIA) of Trade and Investment Agreements. At the European level, the Lisbon Treaty created binding rules on extraterritorial HR obligations of the EU and its Member States (Art 21 (1) TEU and Art 207 (1) TFEU)). This has been developed in a number of documents with binding rules (EU Strategy 2011-14 for Corporate Social Responsibility (CSR), Second Action Plan on HR and Democracy of 2015, Better Regulation Guidelines) (see also, Gruni 2014 and Bürgi 2016). In this paper we will present a critical assessment of the internal and external logic of the HRIAs of trade and investment agreements following the UN Guiding Principles (see, de Beco 2009; Harrison 2010; The World Bank 2013), but also the main EU Guidelines. Our critical assessment will be around four questions: (i) What is the raison d’être and legal status of HRIAs?, (ii) How should negative impacts on HRs be assessed and measured?, (iii) Are HRIAs proportional?, and (iv) Are HRIAs accurate? By addressing these questions, we will be able to shed more light on the innovative character (or not) of HRIAs, their predominant nature (legal?, political?, technical?), their inherent potential and limitations as a new governance instrument for GVCs, and their compatibility with other policy instruments.