The role of civil society was a hotly debated topic in the context of trade policies and trade agreements such as TTIP and CETA (Eliasson and Huet 2018). More recent preferential trade agreements (PTAs) include provisions that explicitly demand the participation of non-state actors such as non-governmental organisation (NGOs), citizens as well as the private sector. The number of trade agreements with such provisions is increasing and many of these provisions are linked to the ever growing role of non-trade issues such as labour and the environment. US trade agreements include this type of environmental provisions since NAFTA in 1992, while the EU included such provisions in the 2008 CARIFORUM agreement for the first time (Montoute 2011). In a broad sense, the aim of these provisions is to enhance civil society participation during the adoption, implementation and enforcement of trade agreements and the environmental provisions they contain. Furthermore, some PTAs foresee the establishment of institutions that aim at increasing the participation of non-state actors.
Different types of participatory provisions
With a focus on environment, one can distinguish four different types of participatory provisions by using the public available codebook as well as the dataset of the Trade and Environment Database (Morin, JF, A. Dür and L. Lechner 2018). A first type of provisions demands public participation during the adoption of environmental measures at the domestic level. More than 40 PTAs include such formulations. The basic idea is the following: If a government wants to pass a new environmental law, it shall encourage public debate with and among non-state actors about this legislative activity. There are many possible forms of participation, e.g. the submission of comments or public consultations. Participatory provisions in trade agreements require the process of adopting new environmental policies to be transparent, but some of them go further than that and demand that it must be possible for the public to actively participate in the adoption of environmental measures. One example of this type of participatory clause aimed at the adoption of such measures can be found in CETA (2014):
CETA, Art. X7: “Each Party […] shall encourage public debate with and among non-State actors as regards the development and definition of policies that may lead to the adoption by public authorities of environmental laws and regulations.”
Find non-state participation in environmental provisions of Preferential Trade Agreements in TREND analytics.
A second type of participatory provision demands public involvement in the implementation of the PTAs environmental provisions. There are some 50 PTAs including this type of provisions, mainly within the EU context (e.g. Cotonou Agreement 2000 or CARIFORUM EPA 2008). They demand informing the public about the implementation of the PTA in question and also demand civil society to be involved through the provision of comments, dialogues, internet consultations, workshops or the designation of a contact point. For example, the Australia-US Agreement (2004) states in Art. 19.5 (2):
“[…] 3. Each Party shall provide an opportunity for its public, which may include national advisory committees, to provide views, recommendations, or advice on matters related to the implementation of this Chapter, and shall make available such views, recommendations, or advice to the other Party and, as appropriate, to the public in accordance with its law.”
A third type of environmental participatory provision demands public submissions on enforcement of environmental measures. Currently, 12 PTAs include this type of provision, which aim at enabling citizens or NGOs to question the PTA partner countries on the enforcement of their domestic environmental measures. The provisions also clarify that civil society can request an investigation of alleged violations of environmental measures and send their questions to the relevant PTA partner country or to an international body. An example can be found in Art 17.7(1) of the Central American Free Trade Agreement (CAFTA) (2004):
“Any person of a Party may file a submission asserting that a Party is failing to effectively enforce its environmental laws. Such submissions shall be filed with a secretariat or other appropriate body (“secretariat”) that the Parties designate.”
Public participation in the “new generation” of EU-Trade-Agreements
Furthermore, a fourth type of participatory provision explicitly demands the creation of domestic and transnational institutions to enable and foster public participation. So far, there are only few agreements – mainly within the EU-context – that include such far-reaching provisions, but their number will likely grow over time. For example, it has become standard to include civil society mechanisms in the so called “new generation” PTAs negotiated by the EU since the EU-Korea-Agreement in 2011 as they are by now an integral part of the new sustainability chapters of EU agreements. These chapters are not restricted to the environmental dimension of sustainable development but aim to promote social and economic development as well.
The provisions foresee non-state actors, such as representatives of labour, environment and business, to participate in domestic civil society meetings, which are often called domestic advisory groups. In addition to this domestic instrument, these provisions demand the organization of a regular transnational civil society meeting between the different domestic advisory groups. This meeting, sometimes called “civil society forum”, is supposed to take place once a year. The provisions demand also some kind of interaction between civil society and the parties. For example, Cecilia Malmström met with the Civil Society of the EU-Georgia Domestic Advisory Group in March 2019. The PTA between the EU and South Korea (2011) provides a “blueprint” for such kind of provisions in Art. 13.13:
“Members of Domestic Advisory Group(s) of each Party will meet at a Civil Society Forum in order to conduct a dialogue encompassing sustainable development aspects of trade relations between the Parties. The Civil Society Forum will meet once a year unless otherwise agreed by the Parties.”
Martens, den Putte et al (2018) develop a civil society involvement (CSI) index and compare ten “new generation” EU trade agreements by using TREND. As they underline, all of the EU’s “new generation” agreements do establish domestic advisory groups, a transnational meeting and some kind of interaction between those two. At the same time, according to their analysis, the nature of civil society involvement is not the same across all of these PTAs: For example, Martens, den Putte et al (2018: 47) find that the independence of the members of the domestic advisory groups varies widely. For instance, in the EU-Vietnam-Agreement (2015) the groups are less independent than in the EU-Canada-Agreement (2014). This is the case, because according to the EU-Vietnam-Agreement the selection of the non-state members of the domestic advisory group should be in accordance with domestic law and can therefore be influenced by the government.
Do participatory provisions in trade agreements enhance civil society participation?
According to Orbie et al. 2016, these mechanisms reflect the cooperative approach of the EU and its ambition to involve civil society in its internal and external policy-making. While one may suspect that the EU wants to merely legitimize an underlying neoliberal orientation of the agreements, Orbie et al. 2016 find that NGOs are aware of this and other pitfalls of the civil society mechanisms. Yet, in qualitative interviews, civil society participants state that the participation has not changed their evaluation of the EU agreements and non-state actors recognize potential benefits of the mechanisms.
Are the various civil society mechanisms in EU trade agreements mere “talking shops” or a “real empowerment opportunity” (Martens et al 2018: 42)? Van den Putte (2015) uses expert interviews to compare civil society participation in the EU-Korea and the US-Korea agreement with a focus on labour – both de jure and de facto. The meetings of the transnational civil society forum in the case of the EU-Korea PTA alternate between Brussels and Seoul and the forum “truly has a transnational character” while the transnational meetings in the case of the US-Korea-agreement are less accountable and there is, for instance, no funding available for civil society participation (van den Putte 2015: 228)
Civil society plays an increasingly important role in trade agreements. All of the mentioned provisions ultimately aim to promote public participation – whether it is in the adoption, implementation or enforcement of environmental policies or the content of PTAs. Especially the new generation EU agreements demand the creation of domestic and international institutions. Research so far has mainly focused on civil society measures in EU agreements. Since various non-EU agreements also include participatory provisions, further research is needed to shed more light on the drivers and effects of including participatory provisions in trade agreements.
This article has been written by Jan Hinze on the basis of the Trade and Environment Database (TREND).