Protecting Peasant Peoples and other Rural workers'Rights through The EU-Mercosur Trade Agreement
Luca Pantaleo, Francesco Seatzu
Negli ultimi anni abbiamo assistito ad un interesse crescente per la protezione internazionale dei diritti umani dei contadini e degli altri lavoratori rurali. Questo interesse è stato dimostrato in particolare dall'adozione, nel 2018, della Dichiarazione delle Nazioni Unite sui diritti dei contadini e degli altri lavoratori rurali (UNDROP), ossia del primo strumento giuridico internazionale specificamente volto a garantire la protezione dei diritti essenziali dei contadini e degli altri lavoratori rurali. Sebbene l'UNDROP sia fortemente incentrata su diritti e libertà preesistenti, essa non manca però di prevendere anche taluni nuovi diritti e libertà. Utilizzando il recente accordo UE-MERCOSUR come caso di studio, il presente articolo, terzo di una quadrilogia dedicata a questo accordo commerciale internazionale, si prefigge di valutare criticamente se l'UNDROP – sebbene non legalmente vincolante – possa essere utile per migliorare e rafforzare la tutela dei diritti umani dei contadini e degli altri lavoratori rurali nel quadro normative-istituzionale degli accordi commerciali internazionali conclusi dall'Unione con Paesi terzi.
In recent years we have seen an intensified interest in the international protection of peasants and other rural workers’human rights. This interest has been demonstrated in particular by the adoption of the United Nations Declaration on the Rights of Peasants and Other Rural Workers (UNDROP) in 2018, namely the first international legal instrument specifically aimed at guaranteeing the protection of the human rights of peasants and other rural workers. Although the UNDROP is heavily grounded in existing human rights and freedoms (including farmer rights and freedoms encompassed in Article 9 of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and indigenous rights and freedoms encompassed in the United Nations Declaration on the rights of indigenous peoples (UNDRIP)), it purports to provide states and other international actors with a new legal tool that furnishes the extra guidance needed to peasant peoples and other rural workers to enjoy their fundamental freedoms and rights that are interlinked with their unique lifestyle. Using the recently adopted EU-MERCOSUR trade agreement as a case study, the present article, the third of a quadrilogy by these authors on this trade deal, critically considers whether the UNDROP – although not legally binding – could be of use to enhance and strengthen the protection of peasant and other rural workers’human rights within the normative framework of international trade agreements concluded by the EU with third states.
Keywords: Agreement in Principle – MERCOSUR – EU – Environment and Labour Standards – Peasant Peoples – Rural Workers – International Trade – United Nations Declaration on the Rights of Peasants and Other Rural Workers (UNDROP).
I. Introductory Remarks - II. Peasant Peoples and International Trade - III. The United Nations Declaration on the Rights of Peasants and Other Rural Workers: An Overview - IV. Debating and Negotiating the EU-Mercosur Trade Agreement: Where Were the Peasants? - V. Analysis of Provisions Related to Peasant Peoples in the EU-Mercosur Trade Agreement - VI. The Need to Interpret the EU-Mercosur Trade Agreement and Its TSD Chapter Through a Peasant Lens - VII. Concluding Remarks: The Future for an Interpretation and Application of the EU-Mercosur Trade Agreement in the Light of the UNDROP Provisions? - NOTE -
I. Introductory Remarks
In 2019, after twenty years of stop-start negotiations, the EU reached an “agreement in principle” (hereinafter the Agreement or the EU-MERCOSUR trade agreement) with the four founding members of the Mercosur bloc (namely Argentina, Brazil, Paraguay and Uruguay).  This agreement indeed constituted an historical and topical moment not only for the EU-Mercosur trade relations specifically, but also and more in general for the EU’s external relations as a whole.  And this is so for several reasons, the most sound and visible of which is that the Agreement was and still is the EU’s largest trade agreement.  The EU MERCOSUR trade agreement was the outcome of intense protests on the part of civic groups both in the EU and MERCOSUR countries.  While several trade unionist, environmentalist, and consumer and human rights groups have been highly critical of the negotiated deal especially in the EU countries,  the Agreement represents the first time that MERCOSUR has accepted the precautionary principle  in a form that forbids the lowering of labour or environmental standards in order to promote trade and attract foreign direct investment,  as well as representing the first time that MERCOSUR accepted institutional dialogue between government and the private sector in an international treaty procedure in an effort to set out clear regulatory requirements and remove red-tape barriers for the establishment and operation of companies.  The Agreement has great relevance to the lives of traders and workers, including peasants and other workers, as it potentially introduces a new space for civic participation, one in which to advocate for labour rights and environmental standards in the MERCOSUR and EU areas.  In future, the Agreement could have even greater importance if MERCOSUR is extended to other nations in South America, which is not impossible though hardly probable.  Given the nature of economic restructuring, nevertheless, it is essential to ask: Where were peasants’ voices and organisations and where were concerns about peasants’ and other rural workers’ interests in the debate for the new agreement? What does the Agreement offer peasants and other rural workers? How effective has it been at protecting and enhancing the fundamental rights of peasants and other rural workers, and at helping them achieve recognition as independent trade [continua ..]
II. Peasant Peoples and International Trade
Why focus on the relationship between peasants’ rights and the EU-Mercosur trade agreement? Such an examination is important both for those concerned about peasant peoples’ rights and interests and for those concerned about free trade and the shape of trade relationships between Mercosur countries and EU countries. Although some EU states like Italy are explicitly concerned with the protection of peasants’ rights, too often the myriad problems facing peasant peoples and other rural workers are framed in our current legal regime as not related to trade in goods and customs.  Yet, trade in goods, services and custom related provisions are central to protect peasants’ interests and freedom.  Crucial to any discussion of protection of peasants, is the recognition of peasants as potentially affected and vulnerable persons and an examination of peasants’ efforts to attain a global normative status in this sense.  Even a look at agriculture and economic studies reveals the negative effects of free trade (FTA) rules and agreements on the human rights of peasants and other rural workers.  One of the main reason behind this is that FTA agreements and rules facilitate dumping and the expansion of agroindustry at the expense of peasant communities and in particular of small and medium farmers.  Another and more general reason lies in the fact that FTA agreements and rules enforce structural reforms, which in turn strengthen transnational corporations (TNCs) and weaken peasant peoples. It then follows that any effort to examine or advocate for peasants’ fundamental rights, thus, shall entail an appreciation and deep understanding of peasant peoples as vulnerable to free trade provisions. A look at the EU-Mercosur agreement from a peasant angle is important, not only because of the need for greater focus on peasants’ position and interests, but because in our current system, peasant persons’ problems and inequality shall be seen through a global lens. In recent years, scholars of domestic agricultural law and policy, such as Paul Collier and Stefan Dercon, have argued that it is hard if not impossible to understand current changes in the domestic agricultural policies without viewing those developments in the context of current global economic change.  Some of the most negative effects of the globalisation process in agriculture look familiar to critics of both EU [continua ..]
III. The United Nations Declaration on the Rights of Peasants and Other Rural Workers: An Overview
At its fifty-fifth plenary meeting on 22 December 2018, the General Assembly (GA) of the United Nations (UN) adopted the text of the Declaration on the rights of peasants and other people working in rural areas (hereinafter the UNDROP or Declaration). The Declaration was not adopted by consensus, and the text was referred for voting, signalling that some states, especially developed ones, had several concerns in relation to its necessity and content.  The result was 119 states in favour, seven against (Australia, Hungary, Israel, New Zealand, Sweden, United Kingdom, United States of America) and 49 abstentions. The UNDROP can be considered the first comprehensive internationally agreed document that deals with the rights of peasants and other rural workers. This is despite the fact that, like the more renowned UN Declaration of the rights of indigenous peoples (UNDRIP) of 2007, it does not have legally binding force.  The UNDROP was the result of seventeen years of international action, intense debate and campaigning in favour of farmers’ human rights. Efforts date back to 2001, when La Via Campesina (LVC), a global movement of peasants and agricultural workers, first brought issues related to peasants rights to the UN’s attention during the debates on the ‘right to development’ at the UN Human Rights Commission.  In 2012 the Human Rights Council (HRC), in particular under the impulse of the food crisis of 2007-2008 and of the phenomenon of land grabbing, elaborated a draft declaration on the rights of peasants and other people working in rural areas through its Advisory Committee.  In the same year, by adopting its resolution on the “Promotion of the human rights of peasants and other people working in rural areas” (A/HRC/21/L.23), the HRC established an intergovernmental working group to further develop and adopt a UN declaration on the protection of peasants’ rights and dignity, which led to more than seven years of diplomatic negotiations among member states of the UN.  This long and complex process shows the relevance of the topic and the involvement of different actors, including non-state entities, representatives of farmer groups, NGOs, both international and national, and individual experts in its development. Nevertheless, it also indicates that states have been overall reluctant to find a quick solution to protect farmers’ rights, leading to the [continua ..]
IV. Debating and Negotiating the EU-Mercosur Trade Agreement: Where Were the Peasants?
In June 2016, the European Commission announced that the EU and Mercosur had restarted their bilateral negotiations in view of concluding an association agreement.  The subsequent process of negotiating and adopting a political agreement between the two parties leading to a comprehensive trade deal was strongly contested, in terms both of its economic and social implications, and (at least among legal writers) in terms of its negative impact on the human rights of the most vulnerable groups and on civil society more generally.  In response to the EU Commission’s announcement, environmentalists, community activists, and human rights advocates commenced to constitute coalitions in an effort to shape the trade discussions.  Notably absent from the ensuing public debate around the new trade deal between EU and Mercosur countries were leading peasants ’rights groups and associations with the only exception of La Via Campesina, as well as an articulated peasant analysis from unions and citizen groups. The comparative lack of involvement by peasants’ representative groups shall be seen in the context of the then poor worldwide recognition of peasants’ special needs and vulnerability. A peasant focus was missing from the debates on the new trade deal not only because peasants’ groups failed to understand global trade as a peasant issue, but also because of the role of environmental NGOs and grassroots movements. Of the groups opposing the EU Mercosur agreement, the environmental NGOs and grassroots movements were arguably the most powerful and therefore had a unique ability to shape the debates. As the debates were concluded, the issue concerning the protection of the human rights and dignity of peasants and other rural workers came further to the forefront. In September of 2020, a joint declaration was signed by European Farmers, the umbrella organisations European Coordination Via Campesina (ECVC), the European Milk Board (EMB) and the Biodynamic Federation – Demeter International – asking their respective governments to reject the EU-Mercosur Agreement. On that occasion, Andoni García Arriola, member of the coordinating Committee of the European Coordination Via Campesina (ECVC), was quoted as saying, “With the EU-Mercosur Agreement ... family farms in Europe are faced with major challenges to produce foodstuffs that uphold stricter environmental and animal welfare standards, [continua ..]
V. Analysis of Provisions Related to Peasant Peoples in the EU-Mercosur Trade Agreement
The EU-Mercosur trade agreement lays down a number of provisions that are directly or indirectly relevant to peasant peoples, despite the negligible role – if any – that they had in the negotiations.  To begin with, in the Agreement there seems to be a noticeable absence when it comes to peasants’ rights – that is, a part or section of the agreement specifically devoted to agricultural goods. In light of the importance of this sector for those who live in rural areas, the presence (or lack thereof) of special rules on agriculture and agricultural products is likely to impact peasants. In this sense, it is worth taking a quick look at the free trade agreement concluded with the Andean Community (hereinafter: EU-Andean Community FTA), which may provide a useful term of comparison,  also in consideration of the relative similarities between Andean countries and Mercosur countries. More specifically, the EU-Andean Community FTA includes a section devoted exclusively to agricultural goods, which applies to all products covered by Annex I of the WTO Agreement on Agriculture.  A Sub-committee on Agriculture is established under Art. 36, with the specific duty, among others, to “evaluate the development of agricultural trade between the Parties and the impact of this Agreement on the agricultural sector of each Party […] and recommend any appropriate action to the Trade Committee”.  If one considers that the liberalisation of international trade in agricultural goods may allegedly give rise to “une pression sur les ressources naturelles et les prix des aliments et avoir un effet négatif sur les revenus et les droits des paysan·ne·s et des personnes travaillant dans les zones rurales”,  it is clear that the establishment of a treaty body such as the Sub-committee on Agriculture may provide an excellent venue in which to assess any such negative effects. Conversely, its absence from the EU-Mercosur free trade agreement may signal that the Parties were less concerned about this aspect in the EU-Mercosur trade relations, which might be difficult to explain given the widespread existence of small-scale farmers in both regional blocs (as seen above). Another interesting feature of the EU-Andean Community FTA – which is lacking in its EU-Mercosur counterpart – is the possibility to adopt “agricultural safeguards” pursuant to [continua ..]
VI. The Need to Interpret the EU-Mercosur Trade Agreement and Its TSD Chapter Through a Peasant Lens
The EU-Mercosur trade agreement and its related annexes and chapters that emerged were therefore the outcome of competing political pressures, few of which, if any, were explicitly about peasants’ fundamental rights and freedoms. While European civic and human rights groups mounted a vigorous campaign for the rights of rural workers and their families with well-organised protests across several countries and throughout the web, the conservative and free trade-oriented forces within governments wielded significant influence over the negotiations. The final agreement therefore expresses a commitment to environmental and human rights demanded by environmental and human rights NGOs and grassroots movements,  at the same time as it reflects the organised resistance to a comprehensive trade deal between the EU and Mercosur that would restrict each government’s sovereign right to approve and enforce domestic legislation on food safety and peasants’ rights or that would too severely impinge on the interests of the prevalent large scale farms and corporations. This tension becomes clear and evident in particular when the Agreement’s efficacy is considered with respect to peasants and other rural workers. Some broad general principles of great significance and impact for the protection of indigenous peoples are placed in the Agreement through its Trade and Sustainable Development (TSD) chapter.  Although these principles could serve an important expressive function in campaigns for the protection of the basic human rights and freedoms of indigenous peasants and their families, they could not operate as enforceable rights for the protection of non-indigenous peasants and other non-indigenous rural workers. Art. 1, para. 1 of the TSD Chapter commits the EU and Mercosur states to: “... enhance the integration of sustainable development in the Parties’ trade and investment relationship, notably by establishing principles and actions concerning labour and environmental aspects of sustainable development of specific relevance in a trade and investment context”. Building off this provision, the TSD Chapter sets forth four guiding principles that EU and Mercosur states commit themselves to promote, all of which are relevant to peasants and other rural workers: the 17 Sustainable Development Goals (SDGs) and related targets; multilateral labour standards and agreements; multilateral environmental agreements; [continua ..]
VII. Concluding Remarks: The Future for an Interpretation and Application of the EU-Mercosur Trade Agreement in the Light of the UNDROP Provisions?
The considerations made above demonstrate that there are serious structural flaws in the EU-Mercosur agreement and its TSD Chapter that limit their ability to redress violations of peasants’ rights or achieve greater peasant equality. From this perspective, the EU-Mercosur agreement ought to be considered a missed opportunity to enhance the rights of peasant peoples. In a sense, this disappointing outcome should come as no surprise. Of the 31 countries that belong to the EU and Mercosur, only 3 have voted in favour of the UNDROP within the General Assembly.  The others have either voted against or abstained. However, as the analysis carried out above clearly suggests, there is also room for some optimism. In fact, despite being a soft law source, UNDROP seems to be generally able to provide new insight to the interpretation of the provisions of international treaties,  including the EU-Mercosur agreement. We believe, in particular, that UNDROP can provide a peasants’ rights-oriented interpretive framework of the EU Mercosur agreement, according to which when multiple interpretations of a provision relevant to peasants are possible, the one that is more favourable to peasants should be preferred. This should allow to fix at least some of the gaps in the promotion and protection of peasant peoples that otherwise clearly affect the EU-Mercosur agreement. From this perspective, and despite the said structural deficiencies, it seems to us that much can still be achieved through the treaty bodies established under the EU-Mercosur agreement, and particularly the Trade and Sustainable Development Sub-Committee. Within the TSD Chapter, particular emphasis should be placed on the SDGs that are specifically relevant to peasants, such as SDG 2.3. Moreover, such treaty body can, and in our opinion should, seek to involve peasant peoples more actively as the primary stakeholders of many of the decisions that can be taken by it. It is nowadays widely accepted that peasants and small-scale farmers play a crucial role for global concerns such as biodiversity, climate change and food security. It is for the EU and Mercosur to prioritise measures and decisions tailored to enhance peasant peoples’ welfare and, in this manner, advance their ambitious sustainable development agendas.
 The text of the FTA is available at the EU Commission’s webpage at: https://ec.europa.eu/trade/policy/in-focus/eu-mercosur-association-agreement/.  Amplius, see L. Pantaleo, F. Seatzu, The Eu-Mercosur Trade Agreement: the Beginning of a New Era for the Eu Mercosur Relations?, in this Review, 2021, p. 315 ff.  See L. Pantaleo, F. Seatzu, One Step Forward, Two Steps Back?: The EU-Mercosur Dispute Settlement Mechanism in the Light of the Eu’s Experience with Free Trade Agreements (Ftas), in this Review, 2021, p. 126 ff.  See also A.M. Dorofte, Eu-Mercosur Deal: A Comprehensive Analysis, available at: https://www.thenewfederalist.eu/eu-mercosur-deal-a-comprehensive-analysis?lang=fr; C. Bianco, Historia de una entrega: las negociaciones para un tratado de libre comercio entre Mercosur y la UE, in Voces en el Fénix, 2018, p. 122.  See e.g. E.G. M. Cienfuegos, La anhelada asocia– ción euromercosureña tras quince años de negociaciones, in Revista Cidob d’Afers Internacionals, 2016, p. 225; L. Bizzozero, Negociaciones Mercosur-Unión Europea, articulación del espacio Euro-Latinoamericano/Caribeño y gobernanza mundial, in Cuadernos de Integración Europea, 2006, p. 5 ff.  Amplius, see L. Pantaleo, F. Seatzu, The Eu-Mercosur Trade Agreement: the Beginning of a New Era cit., pp. 322-324.  In line with the model of international trade agreements imposed in recent years, the Agreement includes provisions for safeguarding the environment and labour standards. For further information on this model, see C. Wold, Evaluating Nafta and the Commissioner for Environmental Cooperation: Lessons for Integrating Trade and Environment in Free Trade Agreements, in St. Louis U. Pub. L. Rev., 2008, p. 201 ff; J. A. Monteiro, Typology of Environment-Related Provisions in Regional Trade Agreements, in WTO Working Paper Ersd, 2016, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2825791.  Amplius, see L. Pantaleo, F. Seatzu, The Eu-Mercosur Trade Agreement cit., p. 320 ff.  See L. Pantaleo, F. Seatzu, op. ult. cit., p. 315 ff; See L. Ghiotto, J. Echaide, Analysis of the agreement between the European Union and the Mercosur, available at: https://www.annacavazzini.eu/wp-content/uploads/Final– Report-EU-Mercosur-26.10.2020.pdf.  See L. Pantaleo, F. Seatzu, op. ult. cit., p. 315 [continua ..]