Sustainable Development in EU–Asia Trade Relations

CHAPTER 9 Sustainable Development in EU–Asia Trade Relations Camille Nessel and Jan Orbie Introduction Debates on whether and how trade agreements should be linked to labour and environmental provisions go back to the 1880s (Charnovitz, 1992; Huberman, 2012). Yet, until today no common ground has been found at the multilateral level on how to link sustainable development with global trade rules. A strong polarization on these points became visible at the World Trade Organization’s (WTO) Ministerial Conference in Singapore in 1996. Whereas the European Union (EU) and the United States (US) argued for a trade-labour nexus, countries of the global South, especially East Asian countries, pronounced their opposition to any linkage and C. Nessel (B) Université Libre de Bruxelles, Brussels, Belgium e-mail: camille.nessel@ugent.be C. Nessel · J. Orbie Ghent University, Ghent, Belgium © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 J. Adriaensen and E. Postnikov (eds.), A Geo-Economic Turn in Trade Policy?, The European Union in International Affairs, https://doi.org/10.1007/978-3-030-81281-2_9 197 198 C. NESSEL AND J. ORBIE declared that this was a matter of the International Labour Organization (ILO). Indonesia stated: ‘the ILO, is the most appropriate forum to discuss the issue and not the WTO’ (Indonesia, 1996) and Malaysia more strongly insisted: ‘we reject any attempt to link labour standards and other social clauses to trade and trade action (…)’ (Malaysia, 1996). The Singapore summit effectively excluded the social clause from the multilateral trade agenda. Later attempts by the EU to readdress labour at the WTO in Doha in 2001 were again rejected by Asian countries. As expressed by the representative from India, ‘The Singapore Declaration had once and for all dealt with this issue and there is no need to refer to it again’ (India, 2001). The impasse at the multilateral trade front resulted in a shift towards including labour and environmental issues in bilateral trade agreements. The main actors for developing the trade-labour-environment nexus have been the EU and United States (Horn et al., 2010; Kerremans & Gistelinck, 2009; Oehri, 2015). The trade agreement with Korea concluded in 2009 was the first EU trade agreement to include a ‘Trade and Sustainable Development’ (TSD) chapter. Following the failure to negotiate an EU–ASEAN FTA, the EU started trade negotiations with Singapore, Vietnam, and Malaysia in 2009. In the TSD chapters of these agreements, Parties commit to respecting ‘fundamental human and environmental rights’. However, as suggested in several contributions to this volume, the TSD chapters continue to cause frictions (Mckenzie & Meissner, 2022; Hennessy & Winanti, 2022). Asian trading partners, but also countries like Australia, continue to be hesitant about integrating these issues in trade agreements (Garcia & Masselot, 2015). At the same time, civil society organizations and the European Parliament have criticized the TSD chapter for its soft design, serving primarily the purpose of ‘window-dressing’, and not bringing about positive change through rule exportation. In its recent Trade Policy Strategy, the European Commission (2021, p. 13) advocated stronger enforceability of these chapters. This chapter’s aim is two-fold. First, we want to provide a basic overview of the EU’s agreement design when it comes to the tradelabour-environment nexus in trade agreements with Asia. Second, we aim to explore how broader international considerations have shaped these clauses as argued in the introduction to this volume (Adriaensen & Postnikov, 2022). Empirically, we focus specifically on EU trade agreements with Korea, Singapore, Vietnam, Japan, and Indonesia. Whereas these 9 SUSTAINABLE DEVELOPMENT IN EU–ASIA TRADE RELATIONS 199 agreements display some diversity in how sustainable development has been incorporated, we will show that they mostly follow the EU’s agreement design/template. In line with findings of Morin and Cartwright (2022) and Young (2022) in this volume, the TSD chapters are mainly determined by domestic EU (f)actors and to some extent by negotiation dynamics as well as thereto related preferences of the Asian trading partners. Geo-economic considerations do not seem to play a major role. The remainder of this chapter proceeds in four steps. It begins by contrasting the EU and US approaches to ‘sustainable development’ in FTAs. This is followed by an exploration of geo-economic factors (cooperation and competition) in the EU’s agreement design. After considering these factors, the partner country and negotiation dynamics in five EU– Asia trade agreements are compared. Finally, a conclusion will reflect on the question why the TSD chapters seems to be resistant to geo-economic motives and whether this might change given the recent developments in global trade. The Design of Sustainable Development Chapters in FTAs Parallel to the exponential rise of bilateral trade agreements since the mid1990s, references to sustainable development in these agreements have also increased. This is particularly the case in trade agreements negotiated by the EU and the United States. This section will outline the threefold structure of EU TSD chapters, involving labour rights, environmental goals, and dispute settlement. Whilst these are often contrasted with the United States, such differences will be put into perspective as there are quite some commonalities between the sustainability provisions in EU and US trade agreements. First, EU trading partners are expected to ‘respect and implement’ in their laws and practices the four fundamental ILO principles, known as core labour standards, regarded as human rights by the EU. They are (1) freedom of association and the right to collective bargaining (e.g. forming trade unions); (2) getting rid of all forms of forced or compulsory labour; (3) abolishing child labour; and (4) ending discrimination in the workplace (DG Trade, 2019). They were privileged by the ILO governing body over other international labour conventions (ILC) to provide an easily promotable norm-catalogue in the Declaration on Fundamental Principles and Rights at Work in 1998. The four principles consist of eight 200 C. NESSEL AND J. ORBIE core labour conventions (out of 190 ILC in total). The rights have been replaced by a focus on principles, which had the advantage of producing a more effective soft law instrument on the most essential aspects of an employment relationship (Alston, 2006, p. 7). Second, the TSD chapters have over time come to include an increasing number of environmental commitments. These focus on the implementation of multilateral environmental agreements, in which international environmental rules are set (DG Trade, 2019). DG Trade mentions nine specific multilateral environmental agreements (MEA) to be implemented in the context of a trade agreement with the EU: (1) Convention on International Trade in Endangered Species of Wild Fauna and Flora; (2) 1992 Framework Convention on Climate Change; (3) 2015 Paris Agreement; (4) Kyoto Protocol on Climate Change; (5) Montreal Protocol on ozone layer protection; (6) The Convention on Biological Diversity; (7) Stockholm Convention on persistent organic pollutants; (8) Rotterdam Convention on international trade in hazardous chemicals and pesticides; and (9) Basel Convention on hazardous waste movement and disposal (DG Trade, 2019). Substantively, these nine agreements can be divided into four subcategories: one clustering around ‘climate change and global warming’, another one concerning ‘prospective dangerous goods and products’, a third one on the ‘protection of Flora & Fauna’ and the fourth one on ‘fisheries’.1 Compared to labour rights, the environmental dimension of EU trade agreements has not been studied as extensively (for exceptions, see Bastiaens & Postnikov, 2017; Jinnah & Morgera, 2013; McNeill, 2020; Morgera, 2012; Morin et al., 2018). Third, these labour and environmental provisions are enforced via a so-called dispute settlement mechanism. The structure and functioning of these mechanisms are roughly the same for all FTAs concluded by the EU (see Fig. 9.1), involving a dialogue-based approach to solve conflicts (Campling et al., 2016). The innovative feature regards the role given to civil society in monitoring the disputes. The central pillar of the EU approach relies on a dialogue between governmental officials and stakeholders from both parties. If a conflict 1 It should be mentioned that we have added three specific agreements regarding the ‘law of the sea’ to the environmental category. This was done as all TSD chapters mention ‘fisheries’ in the category of environmental protection, even if they are not specifically mentioned by DG Trade. 9 SUSTAINABLE DEVELOPMENT IN EU–ASIA TRADE RELATIONS 201 Request Government consultations Panel of Experts might be established Interim report Final report Measures to be implemented Stakeholders provide inputs on observations Domestic Advisory Groups to be informed Possibly review of measure and implementation Fig. 9.1 The functioning of dispute settlement in TSDs (Source Authors’ compilation) arises regarding the TSD chapter, governmental consultation might be requested. If the parties do not find a mutually acceptable solution, the committee of trade and sustainable development, consisting of governmental representatives, responsible for the implementation and operation of the TSD chapter, is to be called. The committee can decide to create a panel of experts, which holds the role of investigating the matter. The panel might seek advice from relevant international bodies and issue a report, which will be sent to both parties for comments. It will also be the basis for a final report that may include suggestions on measures to be taken to implement the findings of the report, which in turn will be sent to the stakeholders. A supplementary provision might include the review of the implementation based on observations of the stakeholders. With this three-fold structure, the EU is often seen to have developed a distinct approach to governing sustainable development matters. However, the putative uniqueness of the EU ‘model’ could be nuanced when comparing with the US approach. Building on primary documents and the significant literature that contrasts EU and US approaches to the trade-labour linkage (Gyanchandani, 2018; Horn et al., 2010; Kerremans & Gistelinck, 2009; Marx et al., 2017; Postnikov, 2020), we compare how both trade powers address the trade-sustainability nexus using Oehri’s (2015) distinction between substance and procedures (see Table 9.1). Substantially, both the EU and the US trade agreements refer to the ILO core labour conventions. However, the EU focuses more strongly on human rights as a whole, whereas the United States gives more 202 C. NESSEL AND J. ORBIE Table 9.1 Differences in EU–US TSD chapters Substantial Issue EU approach US approach Labour ILO core labour conventions Human rights promotion Multilateral Environmental Agreements Wider (focus on climate change) Modest/conservative and tentative Negotiable, Network based more procedural and cooperative approach ILO core labour conventions Domestic labour laws Multilateral Environmental Agreements Deeper (country specific) Environment Procedural Consistent and enforceable legalistic and adversarial approach One-size fits all approach, hierarchical interaction Source Authors’ compilation based on Oehri (2015) and Jinnah and Morgera (2013) importance to enforcement of national labour laws. When it comes to environmental issues, both the EU and the United States mention very similar international agreements, without defining environmental considerations as fundamental rights. Here, Morin and Rochette (2017, p. 28) argue that an ‘americanization’ took place whereby the EU has been influenced strongly by the US’ environmental governance. Since 2006, the EU has increased the number of MEAs integrated in the TSD chapters. EU trade agreements have a wider scope as they encompass more commitments to human rights, good governance, and humanitarian issues apart from labour and environmental matters (Gyanchandani, 2018, p. 10). The EU approach to environmental governance is characterized by its ‘breadth’, whereas the United States, approach is considered more profound (‘depth’). This is because the United States uses less provisions, whilst giving more attention to an engagement with the partner countries concrete environmental situation (Jinnah & Morgera, 2013, p. 334). Whereas the United States identifies concrete measures to implement the MEAs, the EU includes ‘sophisticated provisions that address climate change, as well as articles on the precautionary principles’.2 (ibid., p. 335). 2 ‘A precautionary principle enables decision-makers to adopt precautionary measures when scientific evidence about an environmental or human health hazard is uncertain and the stakes are high’ (Bourguignon 2015). 9 SUSTAINABLE DEVELOPMENT IN EU–ASIA TRADE RELATIONS 203 Differences between the EU and the United States seem larger when it comes to the procedural dimension (Morin & Rochette, 2017, p. 12), although this too can be qualified. The United States demands the enforcement of labour laws, entailing the spirit of the CLS principles before the FTA can enter into force (Harrison et al., 2019). This has been called pre-ratification conditionality. Moreover, the United States has chosen a dispute settlement mechanism that allows for sanctions as a last resort, in the form of financial penalties, as well as the suspension of trade benefits in case of violations (Marx et al., 2017, p. 5; Morin & Jinnah, 2018, p. 2; Oehri, 2015, p. 744). These characteristics have led the US approach to be characterized as ‘hard, consistent, and enforceable’ (see Oehri, 2017, pp. 2–8), in opposition to the EU approach’ characterization as ‘soft, modest, and tentative’ (see ibid., pp. 3 and 173).3 However, these procedural differences might be less visible in practice (Morin & Rochette, 2017; Oehri, 2017). The US’ formal dispute settlement mechanism has rarely been invoked and sanctions never applied (Congressional Research Service, 2019). The impact of US agreements should be observed before they go into force, because of pre-ratification conditionality (see above). At the same time, the EU’s dialogue-based approach has had some impact, leading to substantial change through reform in the partner countries (see Bastiaens & Postnikov, 2017; Postnikov & Bastiaens, 2014). As for the impact of the dispute settlement procedure, there has only been one case relating to the TSD chapter of EU agreements. Following unsuccessful government consultations between the EU and South Korea over the latter’s compliance with core labour rights, a Panel of Experts was established. The Panel ruled that obligations derived from the ILO core conventions are legally binding (Art. 107), that the Korean Labour Act has violated basic union rights (Art. 196), and that South Korea’s efforts in ratifying some ILO conventions are ‘less than optimal’ (Art. 291). However, it also states that South Korea’s policy is still not below 3 Furthermore, it should be noted that the EU’s FTAs are accompanied by political framework agreements with the partner country (e.g. Partnership and Cooperation Agreement [PCA]). The PCA includes a so-called essential elements clause, allowing for the suspension of an agreement if serious human rights violations occur in a third country (cf. Meissner & McKenzie, in this volume; see also Meissner & McKenzie, 2017). However, in the EU, sanctions have been regarded as ‘“the nuclear option”, i.e. something to be deployed only rarely and reluctantly’ (Campling et al., 2016, p. 361). 204 C. NESSEL AND J. ORBIE the ‘legal standard’ of the TSD chapter which only stipulates that ‘continued and sustained efforts’ towards ratification should be made (Art. 292). It therefore remains to be seen what the eventual impact will be on implementation in Korea. Explaining the Soft Approach: Irrelevance of International (F)actors (I) How can we explain the EU’s soft approach? Theoretically, explanations can be situated at the international, partner country, and domestic EU levels. In line with the research aim of this edited volume, this section will explore the relevance of international (f)actors in explaining the nonenforceable, cooperative, and dialogue-based design of the TSD chapters in EU trade agreements. In this regard, we will consider two possible explanations that will turn out to be largely inadequate, one relating to possible cooperation and another one to competition. Theoretically, one could see the EU and US approach as the result of a ‘division of labour scenario’ (cf Morin & Cartwright, 2022) with a strategic interaction between the two. The US pre-ratification conditionality for example and the EUs focus on surveilling the implementation and respect of the non-trade issues, could be seen as intentionally complementary to the US approach. Thus, one could see the sanction-based (US) and dialogue-based (EU) approach as complementary according to a ‘good/bad cop’ logic. In this logic of strategic cooperation, the ultimate goal is to create sympathy for the ‘good cop’ (the EU) through the soft approach, whereas the ‘bad cop’ (the US) uses a hard approach. The result is that the EU and United States would have chosen their respective approaches for strategic purposes to influence third countries’ compliance with sustainable development commitments which are broadly similar when it comes to the substance. However, existing literature does not give any indications of such strategic and intentional cooperation between the EU and the United States. Although ‘collaboration with the United States would be desirable’, in practice it does not happen in the field of sustainable development (De Ville et al., 2016, pp. 42–43). Moreover, there is evidence that the EU’s soft approach rather relates to purely domestic (European) factors such as its hybrid institutional structure and its self-image as a normative power (Manners, 2009; Orbie, 2011). Partnerships between 9 SUSTAINABLE DEVELOPMENT IN EU–ASIA TRADE RELATIONS 205 NGOs and industry have strongly influenced the normative trade policy of the EU (Kelemen & Vogel, 2010; Poletti & Sicurelli, 2016). That said, there may be more subtle and indirect ways in which EU and US approaches to trade and sustainability interact positively. For instance, a trading partners’ concession to one of them may pave the way for the other to guarantee concessions in this domain; or the resolution in a (non-enforceable) dispute between the EU and a third country might spillover into similar cases under US agreements entailing specific action. Further research would be needed on possible interaction effects between both agreements. Meanwhile, we can point to tentative evidence from the case of Vietnam. In 2018, Vietnam revised its labour code. It has been suggested that this revision was a result of a specific US–Vietnam bilateral agreement4 in the context of the Trans-Pacific Partnership (TPP) agreement (Tham & Ewing, 2016, p. 18; Interview with Vietnamese official March 2020). Indeed, the United States had begun discussions on TTP prior to the EU beginning FTA negotiations. Second, regulatory competition between the EU and other economic powers might seem a plausible explanation at the international level. Under regulatory competition, the EU would be rivalling to create the best policy for its own economic advantage. Undeniably, as the contributions of Jong Bum Kim, De Ville, and Soo Yeon Kim in this volume have demonstrated, global competition has become fiercer. In response, TSD chapters could either follow a ‘trading up’ or the inverse scenario a ‘race to the bottom’ logic (Bradford, 2020; see also Gady, 2014; Vogel, 1995; Young, 2015). The ‘trading up’ logic, also known as the ‘Brussels effect’, hypothesizes that the EU aims for other countries to adopt similar standards on labour to have a comparable level of competition (Bach & Newman, 2007). However, this is unlikely to explain the EU’s soft approach. If the EU wanted to primarily impose change to achieve a higher level playing field, it would make more sense to use a pre-ratification requirement and a sanction-based approach with partner countries producing similar products, and a somehow different approach with countries producing complementary products as the EU (most emerging and developing countries). Given that the EU’s agreement design of sustainable development provisions appears to be a template for trade agreements with all countries, plausibility is not given for the 4 United States–Viet Nam Plan for the Enhancement of Trade and Labour Relations, signed 4 February 2016 (not yet in force) cl VII(1). 206 C. NESSEL AND J. ORBIE trading-up logic, which also resonates with the contributions of Young (2022) on the EU’s rule export and Morin’s and Cartwright’s (2022) findings on IPR. In contrast, the soft design could bring a competitive advantage to the EU and hence be explained by a ‘race to the bottom logic’. Major trading powers such as the EU and the United States are faced with a prisoner’s dilemma whereby each party has an economic incentive not to push too hard on TSD—even if a joint effort may be desirable. The relatively soft TSD provisions allow EU firms and importers to trade at low cost. At the same time, they meet domestic concerns by (seemingly) addressing sensitivities expressed by some members of civil society, parliamentarians, and policy-makers. Furthermore, institutional factors within the EU contribute to explaining the soft design of EU TSD chapters. Young and Peterson (2014) contend that the watered-down development and human rights provisions are a result of the multiple veto players in EU trade policy. For example, cleavages are observable between preferences of the European Commission versus protectionist states, so the soft approach could be seen as a median position. In conclusion, neither strategic cooperation nor regulatory competition explanations can fully grasp the soft approach nature of the EU. The highly competitive international environment certainly sheds light on the difficulties of the EU and the United States to collaborate on more farreaching TSD provisions. Domestic factors relating to the EU’s complex institutional structure and its self-image largely explain the formation of a template that the EU uses in all trade agreements. Nonetheless, there are also some variations between TSD chapters of EU trade agreements with Asia. The next section analyses these variations and explores how geo-economic considerations might explain them. Explaining Variation in EU–Asia Agreements: Irrelevance of International (F)actors (II) After having established that the design of the EU’s three-fold template mainly stems from domestic (European) factors, this section will explore to what extent variations in the TSD chapter of EU–Asia FTAs can be explained by international (f)actors. Previous research has confirmed that the substance and procedures of the EU’s TSD chapters vary, for 9 SUSTAINABLE DEVELOPMENT IN EU–ASIA TRADE RELATIONS 207 instance when it comes to the involvement of ‘civil society’ or ‘stakeholders’ (Martens et al., 2018). However, existing literature has barely elaborated on possible explanations for such divergences. Hence, this section analyses to what extent also the TSD chapters of the EU–Asia FTAs diverge and whether possible differences can be explained by European, partner country or international variables. In doing so, we also aim to provide a more refined picture of the sustainable development dimension of the EU–Asian FTA’s. Specifically, we will examine the TSD chapters of EU trade agreements with Korea, Singapore, Japan, Vietnam, and the agreement that is being negotiated with Indonesia. We will consecutively analyse the labour, environmental and dispute settlement provisions of these five agreements (see Table 9.2).5 First, all five agreements mention the ILO principles on core labour standards. In this sense, there is an aquis in the EU’s template relating to the principles of the ILO Declaration of 1998 (see above) which comes back in every trade agreement. When taking a more concrete look at how these labour commitments are defined, differences can be noticed in the wording preceding the ILO principles. From a legal of point of view in can be said that two kinds of commitments are generally proposed by the EU: ‘commit to/reaffirm the commitment ’ in contrast to ‘shall promote and implement ’. Whereas the former has ‘legally binding effect under international law’ on the condition that the parties have ratified the conventions, the latter ‘enforces international commitment without such a pre-requisite’ (Gyanchandani, 2018, p. 11). A hierarchy ranging from low to highest commitment can be identified (see Table 9.2). Unlike Vietnam and Indonesia, the three agreements with Japan, Korea, and Singapore do not mention ‘shall promote and implement’, suggesting a higher commitment in the latter group. Indonesia shows the ‘highest’ degree of commitment, as it mentions the core labour standards concretely. Vietnam only mentions the principles, making its commitment ‘high’. Singapore’s commitment is medium as it reaffirms the commitment. Japan and Korea have the lowest rank, as they do not reaffirm any commitment. Surprisingly, the ranging between the commitments, do not echo the status of ratification of the CLS conventions themselves. Only Indonesia’s (highest commitment) and Korea’s (low) position can be explained by 5 The dispute settlement mechanism in the currently negotiated agreement with Indonesia has not yet been published and can therefore only be partly analysed. 208 Table 9.2 Differences of labour commitments in EU–Asia FTAs Japan Singapore Vietnam Indonesia The parties, in accordance with the obligations deriving from membership of the ILO and the ILO Declaration on Fundamental principles and Rights at Work and its Follow-Up, …, commit to respecting, promoting and realizing in their laws and practices, the principles concerning the fundamental rights, namely (…) In accordance with the obligations assumed under the ILO and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up … commit to respecting, promoting and effectively implementing the principles concerning the fundamental rights at work, namely: … Each party reaffirms its commitments, in accordance with its obligations under the ILO and the ILO Declaration on ‘Fundamental principles and Rights at Work and its Follow-Up … to respect, promote and effectively implement’ the principles concerning the fundamental rights at work, namely: … The parties reaffirm their obligations deriving from the ILO membership. The parties further reaffirm their respective commitment with regard to the ILO Declaration on ‘Fundamental principles and Rights at Work and its Follow-Up. Accordingly, the Parties shall respect, promote and realize in their laws, regulations and practices the internationally recognized principles concerning the fundamental rights at work, which are: … In accordance with the ILO Constitution and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up … each Party shall respect, promote and effectively implement in their laws and practices the internationally recognized core labour standards, as defined in the fundamental ILO Conventions, which are: … C. NESSEL AND J. ORBIE Specifics in Wording regarding ILO conventions South Korea Japan Singapore Vietnam Indonesia Low Low Medium High Highest 4/8 6/8 6/8 6/8 8/8 SUSTAINABLE DEVELOPMENT IN EU–ASIA TRADE RELATIONS Source Authors’ compilation 9 Degree of Commitment Number of CLS ratifications South Korea 209 210 C. NESSEL AND J. ORBIE the ratification, as they respectively have the highest and lowest status of ratified fundamental conventions (ILO, 2020). What possibly explains the differences are negotiation dynamics and the preferences of the parties. In this regard, Vietnam, Japan, and Singapore have ratified the same number of CLS conventions. However, Singapore has the same ratification record as Korea, yet it devotes more strongly to the ‘respect of the principles’ than South Korea. Clearly, the partner country variable does not explain all the variance. For instance, Japan with six out of eight ratifications also purely ‘commits’.6 Moreover, Vietnam also scores high on the formulation of labour rights in the trade agreement, whereas it has ratified the least number of ILO core conventions of this group. Vietnam’s relatively high commitment on labour rights relates to international factors, most notably the impact of the preceding TPP negotiations and the US insistence on changes to the labour code (see above). Moreover, domestic factors in the EU, such as the increased politicization of trade policy through the European Parliament and the mobilization of European civil society over tangible human rights commitments provide a compelling explanation (Hoang, 2016; Hoang & Garcia, 2022; Sicurelli, 2015). Second, there is also significant variation in the environmental provisions. Table 9.3 provides a comprehensive overview of the environmental agreements included (light shaded) and those absent (dark) from the FTAs. As can be seen from the overview, and in line with other research (Morin & Rochette, 2017), there is a clear cumulative logic over time. The most significant explanation for this variation is not purely situated at the European, international or partner country level, but it corresponds more broadly to the factor of time. TSD chapters tend to copy-paste the environmental commitments made in previous agreements and add new environmental measures as the negotiations evolve. Whilst the EU–South Korea FTA, concluded in 2009, mentions only three agreements, the Singapore agreement, completed in 2014, already mentions six MEAs. Vietnam was concluded in 2015 and entails two additional agreements. The consolidated text for Japan of 2017, adds one more agreement, and 6 See EESC members visit Japan to talk trade and sustainable development with authorities and civil society organizations (06/02/2020). https://www.eesc.europa.eu/ en/news-media/news/eesc-members-visit-japan-talk-trade-and-sustainable-developmenthttps://www.greeneuropeanjournal.eu/howauthorities-and-civil-society-organisations, do-eu-free-trade-agreements-protect-workers/. 9 211 SUSTAINABLE DEVELOPMENT IN EU–ASIA TRADE RELATIONS Table 9.3 Environmental agreements in TSD chapters and status quo of ratifications Agreement Climate Change and Global Prospect Dangerous Flora and Fauna Protection Warming Goods and Products Total MEA UNFCCC (2015) Kyoto Protocol (1997) Montreal Protocol (1987) Basel Waste (1989) Stockholm Convention Rotterdam Convention Cites (1973) Biological Diversity (1992) Fishing Vessels on the High Sea (1993) Agreement on Port State Measures to Prevent, Deter and Eliminate IUU Fishing (2016) Straddling Fish Stocks and Highly Migratory Fish Stocks (1995) Total amount of Agreements mentioned South Korea UNFCCC (1992) (year) AR AR AR R R R R R R R R R 3/9 AR AR AR R R R R AR R A A - 6/9 AR AR AR R R R R AR AR A AR AR 8/9 A R AR AR R R R R AR AR AR R AR 7/9 AR AR AR R R R AR AR A AR AR 8/9 (2009) Singapore (2015) Vietnam (2019) Japan (2018) Indonesia R (ongoing) Source Authors’ compilation, A = Agreement mentioned, R = Agreement ratified the EU proposal for the FTA with Indonesia involves eight environmental agreements. The trading partner country context might also explain some of the variation. For instance, the addition of the Montreal Protocol on the ozone layer in the EU–Indonesia FTA may be related to the high importance of climate change for the Indonesian context. A specific clause regarding Indonesia’s most important export product, palm oil and deforestation, has not been integrated, despite it being the most sensitive issue in the negotiations (Hennessy & Winanti, 2022). This is even 212 C. NESSEL AND J. ORBIE more remarkable as the EU–Indonesia agreement compromises most environmental provisions (see Table 9.3). Overall, the logic of incremental build-up of environmental agreements is clear. Importantly, this is not because more international environmental agreements are being concluded which then subsequently become incorporated into EU trade agreements. This would constitute an explanation at the international level. Instead of instituting an update in terms of international law, it mostly concerns the regulation of already existing environmental agreements (such as the 1987 Montreal Protocol, the 1992 Biodiversity Convention, and the Agreement on Fish Stocks of 1995). Overall, it is unlikely that the partner countries are the driving forces behind this incremental logic, as there is also no clear correlation between the MEAs included in the trade agreement and those ratified by the partner country (see Table 9.3). In any case, there are no indications that international factors would play a major role in this dynamic. Third, there is significant variation in the governance provisions of the TSD chapters. In order to analyse this, we rely on an updated version of the ‘Civil Society Index’ (CSI) developed by Martens et al. (2018) which also includes the EU–Japan agreement.7 This involves five clusters which together indicate the levels of civil society involvement. As Table 9.4 illustrates, the agreement with Korea scores much higher than that with Singapore, whereas Vietnam and Japan display a medium involvement of civil society. Korea’s high score on the CSI index results from the ‘scope in membership’ and ‘dispute settlement’. New domestic institutions are established for the specific purpose of the chapter. The transnational mechanism is closed and does not allow for external parties to join. Meetings can be held without the party’s invitation and at a frequency desired by the domestic advisory groups. The high scoring is also the result of their role in dispute settlements, where they can provide input for the investigation and may interact with the parties. In contrast, Vietnam and Singapore score remarkably low on ‘independence’. In this regard, it should be noted that these are the only two EU trade agreements which avoid the term ‘civil society’ and instead opt for the less politically sensitive ‘stakeholders’ (ibid.). Nonetheless, Vietnam scores consistently higher than Singapore on other dimensions. 7 Indonesia’s Dispute Mechanism has not been drafted yet and can therefore not be included in the analysis at this stage. 9 SUSTAINABLE DEVELOPMENT IN EU–ASIA TRADE RELATIONS 213 Table 9.4 Civil society involvement in TSD chapters Cluster Korea (2009) Singapore (2014) Vietnam (2015) Japan (2017) Independence Scope membership Operation transnational mechanism Interaction Dispute settlement Total 4/4 Highest 6/9 medium–high 3/3 Highest 2/4 Medium 3/9 low 1/4 Low 6/9 medium–high 2/3 medium 3/4 high 5/9 medium 1/3 low 3/7 medium–low 4/7 medium 7/12 medium 2/12 low 6/7 high 4/12 low 5/7 high 4/12 low 23/35 HIGH 19/35 MEDIUM 18/35 MEDIUM 0/3 Lowest 11/35 LOW Source Authors’ compilation based on Martens et al. (2018) In terms of explanations, a consistent logic does not seem to emerge. Contrary to the environmental provisions, there is no incremental buildup over time, as the first agreement negotiated (South-Korea) is also the most ambitious one. This aligns with Hilpert and Park’s finding that the EU pressured Korea strongly to ratify ILO conventions (Hilpert & Park, 2022). There are also no clear indications that partner country variables would determine their position on the CSI. Indeed, the identified differences do not reflect the degree of civil society freedom in the countries. According to the State of Civil Society Report 2018 (Civicus, 2019), all four countries score between closed,8 obstructed,9 and narrowed.10 Civil society spaces in Korea and Japan are narrowed, in Singapore are 8 There is complete closure—in law and in practice—of civic space. An atmosphere of fear and violence prevails, where state and powerful non-state actors are routinely allowed to imprison, seriously injure and kill people with impunity for attempting to exercise their rights to associate, peacefully assemble, and express themselves. 9 Obstructed—‘Civic space is heavily contested by power holders, who impose a combination of legal and practical constraints on the full enjoyment of fundamental rights. Although civil society organizations exist, state authorities undermine them, including through the use of illegal surveillance, bureaucratic harassment, and demeaning public statements…’. 10 Narrowed—‘Whilst the state allows individuals and civil society organizations to exercise their rights to freedom of association, peaceful assembly, and expression, violations of these rights also take place…’. 214 C. NESSEL AND J. ORBIE obstructed, and Vietnam are closed. Vietnam’s medium score does not match the very low score of the Civil Society Report. Vietnam’s relatively high score, compared to the provision in the Singapore agreement and taking into account the difficult position of civil society in Singapore, may be related to the increased politicization of trade policy (including the EU–Vietnam agreement) within the EU as well as the precedent of the US-induced commitments in the TPP (Ha Hoang & Garcia, 2022). Overall, however, it is again hard to discern any impact of international (f)actors on the variation of provisions in the TSD chapters. Conclusion The goal of this chapter was to present an overview of sustainable development provisions in EU–Asia trade agreements and to explore to what extent geo-economic motives help explain (a) the ‘soft’ nature of the TSD chapters in these agreements as well as (b) the variation that can be observed between the agreements with Singapore, Vietnam, Japan, Indonesia, and Korea. Based on secondary literature and primary sources, we have not been able to find much evidence of international (f)actors. The general design of the TSD chapters and their refinement in existing agreements rather reflects the interests, ideas, and institutions of the EU and to some extent the preferences of Asian trading partners. The EU’s agreement design is a template that is being partially adapted to the partner countries context. The only case where a clear (but indirect) impact can be seen from the United States in the region, was in relation to Vietnam’s relatively far-reaching provisions on labour rights and civil society involvement, which partly relate to the US demands in the context of the TTP agreement. Further research would be needed on the potential interaction effects between the sustainability dimensions of EU and US negotiations and agreements. Synergies may be particularly fruitful as our chapter also showed that the traditional distinction between the EU and United States might be overestimated. Both have more in common than it seems, notably the same objectives. The new trade policy course of the Biden Administration may also facilitate transatlantic collaboration in this area, as the new US administration puts more emphasis on labour rights and climate change. On the other hand, it seems likely that the new US Administration will not engage in large free trade deals, and the EU’s 9 SUSTAINABLE DEVELOPMENT IN EU–ASIA TRADE RELATIONS 215 agreement on investment with China has impacted negatively on EU– US trade cooperation (Howse, 2021). Instead, more tangible progress might be expected from the implementation of the various EU and US trade agreements and how these interact in the local context of Asian countries, for instance through the legal challenging of partner countries’ compliance. Acknowledgements We are grateful to the editors for careful editing and insightful suggestions that have informed different parts of our analysis. Annex See Table 9.5. 216 C. NESSEL AND J. ORBIE Table 9.5 Civil Society Index, long version Cluster Independence participants Scope membership Operation transnational mechanism Criteria Korea Singapore Vietnam Japan (2009) (2014) (2015) (2013) Term 2 0 0 2 Independence mentioned 1 1 1 1 Selection 1 1 0 0 Subtotal 4 2 1 3 Domestic mechanism 0 1 1 1 Novelty 2 0 0 0 Transnational mechanism 3 1 4 3 Presence state actors 1 1 1 1 Subtotal 6 3 6 5 Deadline 1 0 1 1 Reoccurrence 1 0 1 0 Independence organization for 1 0 0 0* 3 0 2 1 (CS) 1 0 0 0.5 CS and Government: 0 Domestic mechanism and Parties 0 0 1 CS and Government: 0 domestic mechanism and own government 1 1 1 Subtotal Interaction Civil Society mechanisms (continued) 9 SUSTAINABLE DEVELOPMENT IN EU–ASIA TRADE RELATIONS Table 9.5 (continued) Dispute settlement mechanism CS and Government: 1 transnational mechanism and parties 3 5 3 CS and Government: 1 domestic mechanism intermediate for transnational 0 0 0,5 Subtotal 3 4 6 Domestic mechanism 1 basis initiation 0 0 0 Domestic mechanism 3 advice to Government consultation 0 1 0 Domestic mechanism to 2 Panel of Experts 0 0 0 PoE informs domestic 1 mechanism on outcome 0 0 0 Parties inform domestic 0 mechanism about implementation PoE report 1 1 2 Domestic mechanism 0 involvement monitoring implementation PoE report 1 2 2 Subtotal 7 2 4 4 Total 23 11 19 *Not specifically mentioned, only for DAG Source Authors compilation based on Martens et al. 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