Written submission from Justice for Colombia (TFP0015)

Justice for Colombia’s Submission on the UK-Andean Countries Free Trade Agreement

About Justice for Colombia

  1. Justice for Colombia (JFC) was founded in 2002 by the British trade union movement to support human rights, labour rights, peace, and social justice in Colombia.
  2. JFC promotes links between British and Irish trade unions and organisations in Colombia and seeks to give a political voice internationally to Colombian civil society through work in the British, Irish and EU parliaments.
  3. JFC was directly involved in supporting the 2012-2016 Havana Peace dialogues between the Colombian government and the FARC-EP, taking several cross-party delegations to meet with both negotiating teams.
  4. In 2018, JFC created the Peace Monitor which has taken several political delegations to Colombia to monitor the advancement of the implementation process, and will continue these delegations from 2022 now that international travel to Colombia is once again possible.
  5. JFC also worked closely with MEPs from across Europe during the debates leading up to the signing of the EU-Colombia Free Trade Agreement, most notably seeking to ensure inclusion of a commitment to international standards on human rights.

Summary

  1. In June 2019, the United Kingdom signed a trade agreement with Colombia, Peru, and Ecuador, ‘rolling-over’ a previous deal agreed by the Andean countries and the European Union in 2012.
  2. The UK-Andean Countries Trade Agreement is currently awaiting approval by Colombia’s Constitutional Court. A bridging agreement remains in place in the meantime and was extended in September 2021.
  3. The UK agreement adopts the text of its EU predecessor "mutatis mutandis" with minor technical amendments. As such, there is already nearly a decade of evidence on the agreement’s impact on the promotion of Human Rights.
  4. The 2012 United States-Colombia Trade Promotion Agreement similarly offers insights into efforts to link trade to the promotion of Human Rights.

 

  1. Colombia faces a profound Human Rights crisis, marked by the systematic killing of Human Rights Defenders (HRDs) and other community activists including environmentalists, trade unionists, indigenous leaders, women’s rights campaigners, and LGBT advocates. 
  2. The scale of the crisis is recognised by the Foreign, Commonwealth and Development Office (FCDO), which designates Colombia a Human Rights priority country.
  3. In both the EU and US cases, efforts were made to tie their respective trade agreements to separate initiatives on improving the rights situation in Colombia. However, with few mechanisms for ensuring compliance, both initiatives have struggled to reach their stated goals, while simultaneously sacrificing an important lever in pressuring the Colombian authorities into taking more concerted action.
  4. The UK has rewarded Colombia with a trade agreement without first seeking any concrete improvements on Human Rights. Meanwhile, like its EU predecessor and US equivalent, the UK-Andean Countries Trade Agreement lacks any effective mechanisms for addressing Human Rights abuses.

 

  1. The experience of the EU-Andean Countries Trade Agreement shows there is scope for the UK to strengthen the existing monitoring mechanisms in the agreement’s current framework, particularly through bolstering the role of Domestic Advisory Groups and creating formal channels to raise their concerns.
  2. The UK should also consider adding an addendum into the trade agreement that allows for effective redress in the event of Human Rights violations or serious deficiencies in the implementation of the 2016 Peace Agreement. An example of similar mechanisms can be found in the United States–Mexico–Canada Agreement (UMSCA).

 

  1. These steps would help ensure there is no contradiction between the the UK’s trade policy and the Foreign, Commonwealth and Development Office’s (FCDO) commitment to bolstering Human Rights in Colombia and ensuring compliance with the 2016 peace agreement.
  2. Leaving the European Union presents the UK with an opportunity to take a world leading position in ensuring trading relationships are used to advance peace and strengthen Human Rights practices.

Human Rights in Colombia

  1. The FCDO’s latest Human Rights and Democracy Report for 2020 highlights the “high number of killings of human rights defenders (HRD)” as the primary area of concern.
  2. Colombia also continues to see a high-level of state violence against civil society actors, including during widespread protests in the country between April and June 2021. A November FCDO ministerial statement covering the first six months of 2021 noted “human rights violations by the police and armed forces in response to the protests, including allegations of homicide, sexual violence and arbitrary detentions”. The report further references the United Nations Office of the High Commissioner for Human Rights (OHCHR) finding that 56 people had been killed in the protests.

 

  1. In 2016, the Colombian government signed a historic peace agreement with the FARC-EP, largely bringing to an end the longest running conflict in the Americas. The peace agreement has been widely recognised for its world leading stance on recognising issues such as gender rights and social reform. Parties from across all political traditions in the UK and Ireland were involved in supporting the negotiating process, drawing on experience drawn from the Good Friday / Belfast Agreement. 
  2. The UK is penholder for the Colombian peace agreement at the U.N. Security Council, giving it a key international role in overseeing its implementation.

 

  1. The UK also provides significant amounts of foreign aid to Colombia, funding in particular projects relating to the environment and peace process. 
  2. It is important that any trade agreement with Colombia does not undermine the UK’s other commitments to the country.

 

Colombia’s experience of EU and US trade agreements

  1. Over the last decade, both the United States and European Union have sought to lay the groundwork for strengthened Human Rights practices in Colombia through initiatives accompanying trade deals. These provide illustrative examples of the likely outcomes of the UK-Andean Countries Trade Agreement as currently constituted.

United States-Colombia Trade Promotion Agreement

  1. In the US, Colombia’s Human Rights record initially saw Congress postpone and then effectively block a trade agreement. In response, the Obama administration negotiated with their Colombian counterparts a Labour Action Plan (PAL) aimed at providing trade union and human rights guarantees as a precursor to any future trade agreement. The US-Colombia Trade Promotion Agreement was subsequently ratified in October 2011 and activated in April 2012.
  2. The impact of the PAL on Human Rights in Colombia was, however, relatively limited. A report from Colombia’s principal trade union observatory, the National Trade Union School (ENS) found that the PAL had not improved the trade union and human rights situation in Colombia. It was particularly critical of the fact that Colombia’s unions were not consulted in drawing up the action plan.
  3. Meanwhile, the United States Department of Interior’s five-year review of the PAL in 2016 noted a lack of significant progress in areas including protection for trade unionists under threat of violence, the tracing of threats against trade union leaders and activists, and convictions in cases involving trade union homicides.

European Union-Andean Countries Trade Agreement

  1. The European Union-Andean Countries Trade Agreement followed a similar negotiating process to its US equivalent.
  2. The agreement was signed between the EU, Colombia and Peru in June 2012 and came into effect in Colombia in August 2013. Ecuador later acceded to the agreement in November 2016.
  3. During approval of the agreement, the European Parliament insisted that Colombian and Peruvian governments submit action plans on the deal’s sustainable development chapter, including concerns over the environment, labour rights, and Human Rights. 
  4. Again, the impact of the action plan appears to have had a negligible impact. The EU’s own implementation assessment in 2018 concluded “the [Human Rights] roadmap has not been implemented as planned, trade union activity and the defence of human rights in general are still criminalised by illegal agents and, sometimes, the State itself, and the leaders of such activities face serious risks.”
  5. A 2015 ENS study cited by the EU implementation report found that the Colombian Government had failed to adhere to the roadmap in five key areas: “1) labour coordination bodies that are not independent trade unions; 2) lack of transition from informal work to formal contracted work; 3) violence against trade unionists; 4) limited participation of civil society; 5) shortcomings in legal aspects and implementation.“
  6. In both the EU and US examples, the prospect of a trade agreement was successfully leveraged to drive action by the Colombian authorities over Human Rights. Ultimately, however, a lack of mechanisms to enforce this action or penalise inaction have led to a failure to drive real change. With the trade deal still in place, and little risk of it being suspended, there are few incentives for Colombian authorities to act.

Expected outcomes of the UK-Andean Countries Free Trade Agreement

Existing provisions within the agreement

  1. The UK-Andean Countries Trade Agreement adopts the text of its EU predecessor ‘mutatis mutandis’ and therefore includes the same provisions relating to human rights and sustainable development.

 

  1. Article 1 states that “respect for democratic principles and fundamental human rights, as laid down in the Universal Declaration of Human Rights, and for the principle of the rule of law, underpins the internal and international policies of the Parties. Respect for these principles constitutes an essential element of this Agreement.”
  2. In principle, Article 1 provides for the immediate and unilateral suspension of the agreement in the event of serious violations of democratic principles or human rights. In the EU context, this would require an EU member state to take Colombia to the International Court of Justice (ICJ). Then, a unanimous agreement of all EU member states would be required before any action could be taken. This prescriptive process makes such steps near impossible.
  3. In principle, the more bilateral nature of the UK-Andean Countries Trade Agreement makes suspension under Article 1 more straightforward. However, the steps for taking such action in a UK context remain unclear. Moreover, while the EU sought to use the action plan as a means of demonstrating continued compliance with Article 1, the UK has not linked the trade agreement to any formal action on Human Rights.    
  4. As a result, the Trade Union Congress (TUC) has joined Colombian trade union centres the CUT and CTC in arguing that Colombia’s continued Human Rights crisis already puts the country in breach of Article 1 and the trade agreement should be suspended “until effective measures to ensure labour standards and human rights are observed and enforced”.

 

  1. Title IX of both the EU and UK-Andean Trade Agreements covers Trade and Sustainable Development, requiring parties to take account of environment and labour related issues.
  2. Article 280 provides for the creation of domestic mechanisms to monitor compliance with Title IX. In practice, these have taken the form of the EU, Colombia, Peru and Ecuador each creating its own Domestic Advisory Group (DAG).
  3. Title IX does not explicitly cover human rights. However, the DAGs’ remit to monitor environment and labour related issues has allowed for some scrutiny in this area.
  4. The UK is in the process of creating its own DAGs in relation to the UK-Andean Countries Trade Agreement. The experience of the EU-Andean Trade Agreement is again illustrative of the likely outcomes.

 

Experience of the agreement’s existing provisions

  1. The DAGs created under the EU trade agreement have repeatedly raised the failure of Andean governments to implement the action plan set out prior to implementation. In Colombia, the killing of trade unionists and environmental activists is consistently highlighted alongside human rights abuses by state security forces. The advisory group notes that this situation has worsened since Colombia’s entry into the trade agreement.
  2. The DAGs have voiced frustrations at a lack of mechanisms to address their concerns, calling for “more comprehensive follow-up between meetings on the priority questions raised by the different DAGs… as well as the drawing up of a roadmap on each of the questions and their evolution according to the decisions taken by the governments involved in each case”.
  3. The DAGs have also accused the Andean Governments of impairing their work through a lack of funding for amenities such as travel, instead calling on the EU to guarantee the costs involved. 
  4. A 2020 EU report into the role of civil society participation structures under the EU-Andean Trade Agreement accepted many of the criticisms made by the DAGs. The report concluded that the current mechanisms “needed to be made more effective” and expressed regret that “the Andean governments have delayed setting up and recognising the Domestic Advisory Groups (DAGs)”.
  5. The report called for the EU to continue to provide financial support for the Andean DAGs “until the Andean governments take up this responsibility”.

Recommendations

  1. Having forgone the opportunity to condition the trade deal on improvements to the Human Rights situation in Colombia and compliance with the 2016 peace agreement, it is imperative the UK now uses the existing mechanisms within the deal as effectively as possible and seeks to add further provisions where appropriate.

 

  1. In terms of monitoring, the UK should work to ensure that Colombian and other Andean Governments allow for a fully independent DAGs compromising a representative range of civil society organisations, including human rights groups and trade unions.
  2. As the EU’s experience has shown, providing direct financing to the DAGs in the Andean countries is a relatively easy and efficient way of helping to ensure their proper functioning.  

 

  1. However, as the EU and US experiences demonstrate there is also a need for effective mechanisms to address any human rights and labour rights concerns raised. 
  2. The UK should therefore go further in strengthening the powers of DAGs by setting up a process whereby concerns are investigated and, if necessary, formally raised by the UK Government with their Colombian counterparts, alongside penalties for inaction. 

 

  1. A recent example of efforts to create an enforcement process in relation to labour rights can be found in the Facility-Specific Rapid Response Labour Mechanisms in the United States–Mexico–Canada Agreement (UMSCA) which succeeded the North America Free Trade Agreement (NAFTA) in 2020. The measures were introduced in response to cross-party concern in the US over Mexico’s failure to enact a previously agreed labour rights action plan.

 

  1. The inclusion of new enforcement of similar mechanisms within the UK-Andean Countries Trade Agreement would likely require an addendum to the text.
  2. The UK could cite Colombia’s failure to implement sufficiently the EU’s action plan, ongoing Human Rights concerns, and the newly accrued obligations in relation to the Peace Agreement, as justification for including such an addendum.
  3. The Colombian Constitutional Court’s failure to thus far ratify the agreement provides a potential window of opportunity to enact these measures before the agreement fully comes into place.

February 2022