The EU-Mercosur Trade Agreement Photo: Brazil’s Indigenous People Articulation (APIB), by If Not Us Then Who What is it, and what could it mean for forests and human rights? What is the EU-Mercosur trade Agreement? In June 2019 the European Union (EU) and Mercosur (Brazil, Paraguay, Argentina and Uruguay) announced that they had reached an ‘in principle’ agreement1 on the content of a bilateral trade agreement which they had been negotiating, on and off, for over 20 years. Most of the text of the trade agreement is now public in draft form, although some important annexes and the framing preamble are not available. This may be because they are still being worked out, behind closed doors. There are 17 chapters in the trade agreement, several of which have annexes. The trade agreement is part of a broader Association Agreement, which covers three pillars: trade, cooperation and political dialogue. We understand that human rights issues are included in the political dialogue pillar, but only the trade part is presently publicly available.2 The trade agreement covers liberalisation of tariffs and removal of non-tariff barriers in most sectors over the next 10 to 15 years. The EU hopes to get easier market access for its exports, including machinery, agriculture, pharmaceuticals and financial services, and a chance to bid for public contracts that have previously been closed to foreign companies. Mercosur countries hope to get cheaper access to the EU market for some of its key agricultural and other products, and to make it easier for Mercosur companies to operate in the EU, including easier access to work visas. What are Free Trade Agreements (FTAs) and how does the EU agree them? FTAs are legally binding agreements between two (or more) to be approved by Member States’ Parliaments. This was the countries to increase the trade in goods and services by reducing case, for example, with the EU-Central America Agreement, trade barriers, including quotas, tariffs and non-tariff barriers. the EU-Vietnam Agreement, and the EU-Canada FTA. This way, The EU has agreed over 50 FTAs and is negotiating another 20. some parts of an agreement (those that the EU institutions can decide) can be brought into force, provisionally, before Traditionally, the EU institutions (the Council and the Parliament) the other parts have been approved by national parliaments. have agreed FTAs because they are considered to have sole competence (the right to take decisions and act) over So far, the EU-Mercosur Association Agreement is being trade matters. However, these conventional FTAs are being treated as a whole, so Member State parliaments will need increasingly replaced by more broad-ranging agreements which to approve it (as well as the European Parliament and the cover a multitude of topics such as human rights, government European Council). But if the EU decides to separate the trade procurement, sustainable development, trade facilitation, part, they could try to get it implemented, provisionally, investment, intellectual property and more. Agreements before Member States have approved the political and that cover topics over which the EU does not have exclusive cooperation parts. competence, must also be approved by the national (and On the Mercosur side, we understand that once a single sometimes regional) parliaments of each EU Member State.3 Mercosur country ratifies the deal it can provisionally come The EU can decide to separate the parts of an agreement over into force for trade between the EU and that country, even if which it has competence from those parts which also need other Mercosur countries have not yet ratified the agreement. 3 The European Court of Justice issued an opinion about the EU-Singapore FTA, declaring that the EU does not have exclusive competence (decision-making power) over investment and investor state dispute settlement mechanisms, and 1 https://www.bbc.co.uk/news/world-europe-48807161 also listing a number of areas where the EU does have exclusive competence, including trade and sustainable development. 2 EU-Mercosur Legislative train schedule: https://www.europarl.europa.eu/legislative-train/theme-a- This opinion helps to clarify things, but still leaves room for interpretation for example around human rights. See this balanced-and-progressive-trade-policy-to-harness-globalisation/file-eu-mercosur-association-agreement factsheet on the ECJ opinion: https://trade.ec.europa.eu/doclib/docs/2017/september/tradoc_156035.pdf The EU-Mercosur Trade Agreement May 2020 | Page 2 of 8 The language around trade agreements is complicated. In this explainer we’ve tried to use straightforward language as much as possible, but some technical terms remain. For a glossary of terms and what they mean, visit www.fern.org/FTAexplainer Forests and rights in the EU-Mercosur trade agreement Forests and human rights are only mentioned in chapter 14, Many of these commitments are, however, written in vague the trade and sustainable development (TSD) chapter. This terms, which makes it difficult to hold either party to account chapter sits outside the overarching dispute settlement and if they do not respect them. Forest provisions address enforcement mechanisms of the Agreement and includes illegal logging but not soy, beef or sugar grown on illegally its own enforcement mechanism. For more information see deforested land. The EU Action Plan to halt deforestation and “monitoring and enforcement of the agreement”. forest degradation5 calls for EU trade agreements to promote deforestation-free supply chains for agricultural products, but the clauses in this TSD do not go beyond promoting ‘corporate What is the trade and sustainable social responsibility and ‘responsible business conduct.’ development chapter of an FTA? If a State lowers its own legal environmental protections, Since 2011, trade agreements with the EU have contained this will not be considered to have violated the terms in the a chapter on trade and sustainable development (the TSD unless it can be shown that the goal of lowering the TSD chapter). These chapters are supposed to help environmental protections was to encourage trade or leverage the incentive of enhanced trade and investment, investment. This will be difficult to prove in practice. to improve environmental and labour standards.4 TSD chapters have three core elements – commitments by the The TSD chapter also affirms each party’s right to apply the parties, structures to involve civil society in monitoring precautionary principle when there isn’t enough scientific implementation of these commitments, and a dispute data to conclusively demonstrate that certain behaviour causes settlement mechanism for when commitments are environmental harm or occupational health and safety hazards. breached. The precise contents, structure, and functioning The precautionary principle means parties can lawfully act as of each TSD varies from agreement to agreement. a precaution against potential harm, instead of having to wait until there is conclusive irrefutable proof of harm. Crucially, Some of the key commitments within the EU-Mercosur TSD are: each party can only invoke the precautionary principle to protect against potential harm in its own territory – the TSD • Both parties agree they will not lower the legal protection does not allow the right to take a ‘just in case’ approach for for labour or environmental standards, or stop damage that might happen somewhere else in the world. enforcing those laws, to encourage trade or investment. The TSD chapter does not explicitly deal with human rights • Both parties agree to respect, promote and effectively as separate from labour rights, although there is a reference implement key International Labour Organisation to obtaining the prior and informed consent of forest-based (ILO) Conventions on forced and child labour, non- local communities and Indigenous Peoples in sustainable discrimination at work, freedom of association and the supply chains of timber and Non Timber Forest Products right to collective bargaining. (NTFP).6 There are also references to numerous international • Both parties commit to effectively implement the Paris standards that involve a human rights element including the Agreement and to cooperate on the trade-climate Guiding Principles on Business and Human Rights, and the change interface. Organisation for Economic Cooperation and Development (OECD) guidelines for responsible business conduct. There • Both parties agree to respect multilateral environmental may be commitments around human rights in the political agreements including the Convention on Illegal Trade in part of the Association Agreement, but this text is not yet Endangered Species (CITES). public and it’s not clear if the political part of the agreement • Both parties agree to take steps towards sustainable will come into force at the same time as the FTA. forest management and tackle illegal logging, 5 Protecting and restoring the world’s forests: stepping up EU action to halt deforestation and forest degrada- sustainable agriculture, sustainable management of tion, EU communication, 23 July 2019 fisheries, and sustainable supply chains. 6 Article 8, 2(b) of the TSD chapter says: promote, as appropriate and with their prior informed consent, the inclusion of forest-based local communities and indigenous peoples in sustainable supply chains of timber and non-timber 4 European Commission non-paper, Feedback and way forward on improving the implementation and forest products, as a means of enhancing