Source: International Law and Governance
Source: International Law and Governance
As the economic recovery from coronavirus is worked through, careful steps are needed to ensure actions to enforce human rights commitments in trade agreements do not worsen human rights impacts.
Garment workers hold stickers bearing US$177 during a demonstration to demand an increase of their minimum salary in Phnom Penh, Cambodia. Photo by Omar Havana/Getty Images.
Trade policy is a blunt instrument for realizing human rights. Although many trade agreements now include commitments on human rights-related issues – particularly labour rights – not everyone agrees that linking trade to compliance with human rights norms is appropriate, let alone effective.
Sceptics point out that such provisions may become an excuse for interference or ‘disguised protectionism’ and admittedly anyone would be hard-pressed to identify many concrete improvements which can be directly attributed to social and human rights clauses in trade agreements.
This lack of discernible impact has a lot to do with weak monitoring and enforcement. A more fundamental problem is the tendency of trading partners to gloss over – both in the way that commitments are framed and in subsequent monitoring efforts – significant implementation gaps between the standards states sign up to, and the reality.
Working from ‘baseline’ international standards and treating each state’s human rights treaty ratification record as an indicator of compliance does offer objective verifiability. But it also means underlying economic, structural, cultural, social, and other problems, often go unidentified and unaddressed in the trading relationship.
Those with sufficient leverage can use dispute resolution or enforcement proceedings to signal displeasure at the regulatory failings of their trading partners, as recently shown by the European Commission (EC) in relation to labour violations by trading partners – against South Korea under the 2011 EU-South Korea Free Trade Agreement (FTA) and Cambodia under the EU’s Generalised Scheme of Preferences (GSP) scheme.
These actions do show a more proactive and rigorous EU approach to monitoring and enforcement and have been largely welcomed – especially by trade unions – as a necessary political response to persistent failings by the states to address violations of fundamental labour rights. However, claiming any major victories on behalf of the workers who produce the goods being traded seems premature.
The ‘implementation gaps’ – between human rights commitments made in a state-to-state context and the reality of the human rights situation on the ground – mean there may be cases where enforcement action under a trading arrangement, such as the removal of trade preferences, may actually make things worse. Some local unions have expressed concern that the EU action against Cambodia may be detrimental to vulnerable migrant women factory workers, especially in the context of a worsening economic situation due to the pandemic.
There are routes through which people with first-hand knowledge of human rights-related problems arising from trading relationships – such as labour rights abuses in global supply chains – can make their voices heard. Unions have used consultative bodies set up under trade agreements to highlight labour abuses in trading partner countries – this helped to shift the Commission’s strategy towards South Korea.
But the rather vague and open-ended mandates of these consultative bodies, and their reliance on cash-strapped civil society organisations to do much of the heavy lifting, means they are not a solid basis for systematic follow-up of human rights problems.
And yet, every country is likely to have a number of agencies with interests and expertise in these issues. Beyond labour inspectorates, this could include environmental regulators, licensing bodies, ombudsmen, national healthcare bodies, special-purpose commissions, ‘responsible business’ oversight and certification bodies, local government authorities and national human rights institutions.
At present these groups are barely mentioned in trade agreements with monitoring frameworks for human rights. And if they do feature, there tends to be little in the agreement terms to guarantee their participation.
To seriously address implementation gaps, there needs to be much greater and more systematic use of these domestic regulatory bodies in human rights monitoring and enforcement activities. These bodies are potentially vital sources of information and analysis about the many different social, economic, environmental and human rights consequences of trade, and can also contribute to designing and delivering ‘flanking measures’ needed to assist with the mitigation of human rights-related risks or adverse impacts which have been detected.
Looking further ahead, monitoring practitioners may find – as those involved in the EU GSP+ scheme have already noticed – that close and visible engagement with domestic regulatory bodies helps strengthen a regulator in getting clearer political support and better resources. It can also help with greater ‘buy-in’ to human rights reform agendas, creating conditions for a positive legacy in the form of more confident, committed, and capable domestic regulatory bodies.
Paying more attention to synergies that exist between the work of domestic regulatory bodies and the principles and objectives which cause states to seek human rights commitments from their trading partners is a vital contribution to the concept of ‘building back better’ from the present crisis.
The goal should be to move from the present system – which veers between largely ineffective consultative arrangements and adversarial, often high stakes, dispute resolution – to more cooperative and collaborative systems which draw more proactively from the knowledge and expertise of domestic regulatory bodies, not only in the identification and monitoring of risks, but also in the delivery of jointly agreed strategies to address them.
This article is part of the Chatham House Global Trade Policy Forum, promoting research and policy recommendations on the future of global trade.
Source: International Law and Governance
Estonia’s presidency of the UN Security Council refreshes the debate on global cyber security just as the coronavirus pandemic exposes the consequences of failing to protect critical digital infrastructures.
Targeted cyberattacks are growing in frequency. Photo by Jaap Arriens/NurPhoto via Getty Images.
Recent targeted cyberattacks exploiting the increased demand placed on the healthcare sector during the pandemic led to many calls of condemnation as well as a renewed focus on the connection between cyberspace and the UN’s role in maintaining peace and security.
Many world leaders and renowned experts have been urging governments to take action at the UN level to uphold the international laws being breached by these incidents. UN secretary general Antonio Guterres condemned those carried out on critical civilian infrastructure during his remarks at the Security Council in May following a wave of incidents such as cyberattacks on Czech hospitals and targeting of coronavirus medical research by hostile state actors.
At the same time, Estonia began its first ever presidency of the UN Security Council with a signature virtual event putting cyber security at the heart of its agenda and holding an event on cyber stability, conflict prevention, and capacity-building.
During this meeting member states recognised the COVID-19 crisis has created increased reliance on critical digital infrastructure, and some condemned those targeting hospitals with cyberattacks. However, one permanent security council member abstained from attending – Russia.
Russia-Estonia relations are generally often strained, but the infamous 2007 Tallinn cyberattacks – suspected to be Russian in origin – took down online services for banks, media outlets, even parts of the government, and triggered a radical change in how Estonia managed cyber security.
The lesson from Estonia for any country wishing to undergo digital transformation is simple – that threats to peace and security in the physical world can be translated to cyberspace. Through developing its cyber incident response, the government’s own cyber security capacity and its digital infrastructure, Estonia became a model and a leader on digitization and e-governance efforts.
And although those involved in developing the governance of cyberspace pay credence to a multi-stakeholder approach – involving actors from the private sector, technical community, civil society and academia – states remain the key players.
Countries agreed on a number of commitments in 2015 on norms of responsible state behaviour with the aim of maintaining stability in cyberspace. Yet these commitments were voluntary rather than legally binding and the challenge remains in the implementation of these commitments, the evolving nature of cyberspace, the threat landscape, and the widening capacity gap between those countries with developed cyber capacity and those with nascent digitization.
At the UN level, the debate on global cyber governance is currently split into two parallel processes, within which there are differing views on how cyberspace should be governed. The Open Ended Working Group includes all UN member states and hears consultations from civil society, academia and industry, while the 2019 Group of Governmental Experts contains a group of 25 member countries.
Both processes were due to deliver reports from their proceedings over the next two years to the UN General Assembly, and, although these will most probably be delayed due to COVID-19, Estonia’s decision to put cyber security on the UN Security Council agenda can at least preserve momentum gained from the processes.
But despite being the most powerful UN body, which is capable of issuing binding resolutions, and having permanent members drawn from the world’s most powerful countries – and prolific users of offensive cyberattacks – the Security Council is often criticized for inaction or being paralysed by ‘veto politics’.
Worryingly the council has been unable to even pass a resolution on the coronavirus pandemic and its threat to peace and security. Indeed, exactly what the council deems a threat has evolved over time as events trigger changes in international relations. But what is certain is the fallout from the pandemic will underscore the need for international cooperation on cyberspace to maintain peace and security.
Estonia’s election onto the council accompanied by its campaign commitment to promoting cybersecurity issues is a promising start, and its non-permanent membership does give a genuine opportunity for assertive action against cyberattacks. It has already helped set a precedent of bringing attribution of a cyberattack to the Security Council when, along with the UK and the US, it attributed an attack on Georgia to Russia.
This sets a strong example of how countries can hold each other to account for violations of international norms and reminds states that actions have consequences. State-sponsored cyberattacks are among the most threatening to peace and security, and often states are also the target of such attacks. Therefore, bringing cyber to the Security Council acknowledges the role states have in fulfilling their obligations to each other.
Estonia’s role on the Security Council is also important for small states undergoing digital transformation which may be rather beholden to more technologically dominant states. The pandemic has stretched critical digital infrastructure to its limits and increased the overall harm caused by attacks.
Small states are often heavily reliant on other countries complying with international law and norms to maintain peace and security, but Estonia has the opportunity to frame the cyber security debate beyond the usual geopolitical tensions on the UN Security Council and reflect the true reality – that every country, regardless of size or power, has a key part to play in protecting cyberspace.
Source: International Law and Governance