{"id":41973,"date":"2019-12-03T13:00:43","date_gmt":"2019-12-03T13:00:43","guid":{"rendered":"https:\/\/queme.org\/?p=41973"},"modified":"2019-12-02T11:04:17","modified_gmt":"2019-12-02T11:04:17","slug":"fidh-remarks-on-evfta-ipa-3-dec-2019","status":"publish","type":"post","link":"https:\/\/queme.org\/en\/fidh-remarks-on-evfta-ipa-3-dec-2019\/","title":{"rendered":"EU-Vietnam Free trade agreement (FTA) &#038; Investment protection agreement (IPA) : Art 21TUE"},"content":{"rendered":"\n<figure class=\"wp-block-image is-resized\"><img decoding=\"async\" src=\"https:\/\/queme.org\/app\/uploads\/2019\/12\/fidh-2019.jpg\" alt=\"Logo FIDH\" class=\"wp-image-41974\" width=\"165\" height=\"65\" srcset=\"https:\/\/queme.org\/app\/uploads\/2019\/12\/fidh-2019.jpg 659w, https:\/\/queme.org\/app\/uploads\/2019\/12\/fidh-2019-300x118.jpg 300w, https:\/\/queme.org\/app\/uploads\/2019\/12\/fidh-2019-150x59.jpg 150w\" sizes=\"(max-width: 165px) 100vw, 165px\" \/><\/figure>\n\n\n\n<p><strong>Issues at stake&nbsp;<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>Lack of Ex-ante human rights impact\nassessment &#8211; lack of guaranties regarding ex-post assessment<\/li><li>One of the weaker TSD Chapter compared to\nother agreements<\/li><li>lack of human rights guarantees&nbsp;<\/li><\/ul>\n\n\n\n<p><strong>1.\nLack of <em>ex ante<\/em> Human rights impact assessment (HRIA)<\/strong><\/p>\n\n\n\n<p><strong>The <a href=\"https:\/\/www.ombudsman.europa.eu\/en\/decision\/en\/64308\" target=\"_blank\" rel=\"noreferrer noopener\" aria-label=\"Ombudsman, in February 2016, (opens in a new tab)\">Ombudsman, in February 2016,<\/a> concluded that the refusal of the European Commission to conduct a HRIA in the context of EU-Vietnam Free Trade Agreement negotiation was in contravention with art 21 of the TUE and constituted maladministration. She added: <\/strong><em>The Ombudsman does not believe that it is sufficient to develop a range of general policies and instruments to promote human rights compliance while at the same time concluding a Free Trade Agreement which may, in fact, result in non-compliance with human rights requirements<\/em>. <strong>More than two years later, on October 17, 2018, and despite the Ombudsman\u2019s position, the Commission still relies on its traditional tools and its position remains unchanged.<\/strong> The two agreements proposed by the Commission still fail to provide sufficient human rights guarantees.<\/p>\n\n\n\n<p><strong>2.\nObligation to prevent and remedy negative impacts, framing the text of the\nagreement in consequence<\/strong><\/p>\n\n\n\n<p><strong>The\npotential impacts <\/strong>of investment agreements have been\ndocumented by the UN and go<strong> far beyond labour law<\/strong>. &nbsp;The UN has &nbsp;denounced the impacts on the rights of\nindigenous peoples, the right to health, water, food, non-discrimination,\nadequate livelihoods, access to basic services for the poorest and most\nvulnerable populations as well as the impact in developing countries on debt\nand poverty, land grabbing, and the impacts on the right to an effective\nremedy. The UN rapporteurs and organs have proposed several tracks to improve\ninvestments agreements.&nbsp; None has been followed by the EU.<\/p>\n\n\n\n<p><strong>3.\nEU prefers to use traditional, weak and inefficient tools<\/strong><\/p>\n\n\n\n<p><strong>The\nchapter on &#8220;trade and sustainable development<\/strong>&#8221;&nbsp;<\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>Focuses only on core labour standards and\nthe environment. There is therefore absolutely no help in dealing with\nsituations denounced by the UN. The European Parliament is also of that\nopinion, &#8220;reaffirming the principle of the indivisibility of human rights\nand condemning any attempt to consider any right or ground of discrimination\nless important than others\u201d; In April 2012, even before the start of\nnegotiations with Vietnam, the EP already advocated &#8220;a comprehensive\nchapter on human rights, in addition to the social and environmental\nchapters, in all future free trade agreements&#8221;.&nbsp;<\/li><li>The chapter also fails to impose\nobligations on investors, referring only voluntary initiatives and promotional\nactivities and falling short of international standards, despite the European\nParliament having expressly requested that the objectives of corporate\nresponsibility &#8220;be binding on European companies operating in countries\nwith institutional weaknesses&#8221;.&nbsp;<\/li><li>The Chapter is also formulated in a\nlargely non-binding language (the parties &#8220;reaffirm their\ndetermination&#8221;, &#8220;make efforts&#8221;, aim to &#8220;promote&#8221;, undertake\nto cooperate, dialogue etc) and lacks an enforceable mechanism. Once again, the\nEuropean Parliament recognised these weaknesses and &nbsp;called for the &#8220;inclusion of a\ncomplaint procedure open to the social partners and civil society, the\nestablishment of an independent body to settle relevant disputes and the\npossibility of using a dispute settlement mechanism providing for fines and\nsuspension of trade benefits[&#8230;] equivalent to mechanisms providing for market\naccess provisions&#8221;.&nbsp;&nbsp;<\/li><\/ul>\n\n\n\n<p>Regarding\nthe <strong>human rights clause<\/strong>:&nbsp;<\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>By the European Commission&#8217;s own\nadmission, the EU mobilised the clause only in exceptional circumstances such\nas a coup d&#8217;\u00e9tat.&nbsp;<\/li><li>Since it is left to the sole discretion of\nthe parties to activate it, the clause must be regarded as an ineffective\nremedy for the benefit of the populations that would be affected by the\nagreements.&nbsp;<\/li><li>By instituting a dialogue, they (the\nclause?) fails to effectively compel the parties to implement the agreements in\na manner that respects human rights. In that it allows suspension, the clause\noffers an extreme solution mobilised only after a political decision in extreme\ncases. It lacks the capacity to deal with the day-to-day impacts of agreements,\nto provide useful corrective measures as they occur, and above all to be able\nto enforce the implementation of agreements. It fails to provide a means of\nredress for populations affected by the agreement and fails to provide\nguarantees of non-repetition in the event of a violation of fundamental rights.\nOn this topic, the parliament also concluded: &#8221; <em>the current clauses\nhave had a limited impact on the fulfilment of human rights obligations and\ncommitments; therefore calls on the Commission and the Council to implement the\nfollowing adjustments: (a) incorporate safeguard clauses [&#8230;] (b) establish a\nthorough and regular monitoring of the implementation of human rights\nclauses in trade and association agreements, (c) consider the inclusion of a human\nrights committee in all EU trade agreements in order to ensure rigorous and\nsystematic monitoring of human rights issues under the agreement&#8230; (d) ensure\nthat the European Union has a system of internal remedies to lodge\ncomplaints of non-compliance with trade agreements and human rights clauses<\/em>;<\/li><\/ul>\n\n\n\n<p><strong>The\ninvestment treaty,<\/strong> which offers unique, effective and\nexclusive protection to foreign investors, without the legislative and judicial\nframework protecting poor and\/or particularly vulnerable populations to the\nsame extent, is inherently likely to affect the ability of these populations to\nenjoy human rights, in contravention with the objectives and principles set out\nin Article 21 of the TEU.&nbsp;<\/p>\n\n\n\n<p><strong>4.\nWhat to do&nbsp;<\/strong><\/p>\n\n\n\n<p><strong>FIDH\nand VCHR have submitted <\/strong>a new complaint to the Ombudsman to\ndenounce maladministration. <strong>The Commission must improve the agreements and\nthe guarantees provided. It must assess the many proposals on the table<\/strong>\n(incl. enriching the investment treaties themselves, improving impact\nassessments, effectively regulating European companies, adopting mandatory\nhuman rights due diligence regulation and improving access to legal remedies).\nIn the meantime, the Union has an immediate<strong> obligation to establish a\nmonitoring and complaints mechanism that can monitor the human rights impacts\nof the agreement<\/strong>, facilitate people&#8217;s access to appropriate remedies, and\nprovide guarantees of non-repetition. With regard to guarantees of\nnon-repetition, the monitoring and complaint mechanism should be empowered to\nmake recommendations to the various committees set up by the agreements, with a\nview to adopting appropriate interpretations which may effectively influence\nthe implementation of the agreement. The monitoring and complaint mechanism must\noffer procedural guarantees, effectively decide on the requests submitted to it\nand give reasons for its decisions.&nbsp;<\/p>\n\n\n\n<p><strong>Role\nof the European Parliament:&nbsp; <\/strong>The European Parliament has an important\nrole to play. It should dedicate efforts to monitor the due implementation of\narticle 21 of the TEU, setting a working group to that end, and\ninstitutionalising dialogue with Commission. The European Parliament should\nremain principled, pursuing in asking for due respect of its previous\nrecommendations, but also recalling its position in due time, notably by\nrefusing, postponing and conditioning its consent.&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Issues at stake&nbsp; Lack of Ex-ante human rights impact assessment &#8211; lack of guaranties regarding ex-post assessmentOne of the weaker TSD Chapter compared to other agreementslack of human rights guarantees&nbsp; 1. Lack of ex ante Human rights impact assessment (HRIA) The Ombudsman, in February 2016, concluded that the refusal of the European Commission to conduct &hellip;<\/p>\n","protected":false},"author":434,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_bbp_topic_count":0,"_bbp_reply_count":0,"_bbp_total_topic_count":0,"_bbp_total_reply_count":0,"_bbp_voice_count":0,"_bbp_anonymous_reply_count":0,"_bbp_topic_count_hidden":0,"_bbp_reply_count_hidden":0,"_bbp_forum_subforum_count":0,"footnotes":""},"categories":[118,65],"tags":[965,963,634,821,964,772],"class_list":["post-41973","post","type-post","status-publish","format-standard","","category-opinions","category-resources","tag-european-commission","tag-european-parliament-2","tag-evfta","tag-fidh-3","tag-gaelle-dusepulchre-2","tag-ipa"],"_links":{"self":[{"href":"https:\/\/queme.org\/en\/wp-json\/wp\/v2\/posts\/41973","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/queme.org\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/queme.org\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/queme.org\/en\/wp-json\/wp\/v2\/users\/434"}],"replies":[{"embeddable":true,"href":"https:\/\/queme.org\/en\/wp-json\/wp\/v2\/comments?post=41973"}],"version-history":[{"count":0,"href":"https:\/\/queme.org\/en\/wp-json\/wp\/v2\/posts\/41973\/revisions"}],"wp:attachment":[{"href":"https:\/\/queme.org\/en\/wp-json\/wp\/v2\/media?parent=41973"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/queme.org\/en\/wp-json\/wp\/v2\/categories?post=41973"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/queme.org\/en\/wp-json\/wp\/v2\/tags?post=41973"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}