International Law

Including Gender Chapters In Free Trade Agreements

Gender and legal experts have increasingly shown that trade affects gender differently depending on industry variation, wealth disparity, and specific country models.

By Maya Cohen  
on

In 2019, three transformative free trade agreements (FTAs) between Chile-Canada, Chile-Argentina, and Canada-Israel were created, all of which included an individual and separate chapter exclusively dedicated to gender.

Up until recently, international trade was long understood to be “gender neutral.” That is, it was thought to confer a benefit on all of society in a nondiscriminatory manner. However, gender and legal experts have increasingly dispelled that assumption and have shown that trade affects gender differently depending on industry variation, wealth disparity, and specific country models. In response to this realization, gender has been more and more frequently incorporated into FTA negotiations, culminating in the three FTAs with gender chapters in 2019.

The three 2019 FTAs largely follow the same format as their 2016 predecessor, the first FTA to include a gender chapter, the Chile-Uruguay FTA 2016. The Chile-Uruguay FTA contained broad provisions relating to the importance of eliminating discrimination against women (Article 14.1), as well as the importance of incorporating gender into trade policy to promote economic growth and sustainable socioeconomic development, and highlighted international trade as a vessel to promote women’s involvement in the economy. The Chile-Uruguay FTA gender chapter further references promoting and implementing international agreements that deal with gender but does not refer to any specific international agreements. The parties also assert their willingness to cooperate with one another through, for example, programs aimed at developing women’s skills and competencies in the workplace, developing women’s networks, and encouraging labor practices that ensure the permanence of women in the labor market (Article 14.3). The Chile-Uruguay FTA establishes a gender committee to facilitate dialogue and the exchange of information between Chile and Uruguay regarding the implementation of national policies aimed at increasing gender parity and equality (Article 14.4).

However, the most important point about the gender chapter in the Chile-Uruguay FTA, and arguably the reason that up until recently, gender chapters and provisions in FTAs have been weak and largely considered performative, is because the dispute settlement mechanism applying to the rest of the FTA does not extend to the gender chapter, therefore leaving all of the provisions in the chapter as unprotected and unenforceable (Article 14.6).

As previously mentioned, the 2019 FTAs take a very similar approach to the Chile-Uruguay 2016 FTA. The Canada-Chile FTA (CCFTA) takes a step further in specifically identifying international agreements protecting women’s rights and equality, such as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) (United Nations General Assembly 1979) (CCFTA Article N bis-02). The Chile-Argentina FTA took an additional step in referencing CEDAW as well as the Conventions of the International Labor Organization (ILO), including the Convention No. 100 on equal remuneration for men and women workers for work of equal value; Convention No. 111 on discrimination with respect to employment and occupation; and, Convention No. 156 on equal opportunities and equal treatment for men and women workers for workers with family responsibilities. The Chile-Argentina FTA gender chapter, however, is caveated in that the gender chapter shall not be used to impose obligations or commitments on other provisions and chapters in the FTA.

What is clear from the Chile-Uruguay FTA, CCFTA, and the Chile-Argentina FTA is that rather than use a gender chapter to incorporate substantive obligations on the States, the provisions within the chapter simply refer to obligations contained in agreements to which the States have already agreed, such as CEDAW and the ILO Conventions and include no dispute settlement mechanism to provide discriminated parties with a mechanism to challenge any conduct or law in violation of the provisions of the chapter.

The issue of the lack of an enforceable dispute mechanism provision, however, changed with the Canada-Israel FTA (CIFTA). The CIFTA follows the same structure and format as its predecessors, however it includes one clear difference: under Article 13.6 of the CIFTA, “if the Parties cannot resolve the matter in accordance with paragraph 1, they may consent to submit the matter to dispute settlement in accordance with Chapter Nineteen (Dispute Settlement).”

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With the creation of the new FTAs and specifically the extension of the dispute settlement mechanism to the gender chapter in the CIFTA, the question remains: are these gender chapters positively impacting gender equality and gender parity?

The current answer is largely no, or at least, not yet. The gender chapters, as a whole, lack specific commitments and obligations. For example, rather than simply referencing international agreements on gender, there should be obligations on the States to incorporate the obligations set forth under, for example, CEDAW, into national law and policies.

Additionally, the FTAs lack minimum legal standards, such as, equal pay for equal work, protection of reproductive rights, and implementation of anti-discrimination and anti-harassment laws. Creating a mandatory floor upon which parties could expand and further protect women’s rights and promote gender equality and parity as needed, would ensure the creation of clear and ascertainable goals which parties could work toward, but which could also be adapted per the needs and realities of individual States. The implementation of the minimum standards could be monitored by the Gender Committees already created through the FTAs but currently serving largely performative roles in discussing gender issues and transferring information between the States.

Finally, in terms of the binding dispute settlement mechanism, while CIFTA has been revolutionary in extending the provision to the gender chapter, it has not yet been tested. It is therefore unclear whether the CIFTA dispute settlement mechanism extends to sexual discrimination within corporations and companies against individuals, or whether it simply includes the state parties implementing laws that go against the purpose of the gender chapter.

Overall, the 2019 FTAs are a step in the right direction, in that they finally recognize that international trade impacts people differently depending on their gender. However, in order to concretely impact gender equality and parity within the States, substantive legal obligations, with minimum standards and binding dispute resolution mechanisms, must be incorporated.

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Maya Cohen is an associate at Balestriere Fariello and has a background
in international law and arbitration. She focuses her practice on
complex litigation from investigations to trials and appeals. You can
reach her via email at maya.cohen@balestrierefariello.com.

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