Part III: Gender Mainstreaming in African Free Trade Agreements Series

Welcome to the final part of? Gender Mainstreaming in African Free Trade Agreements? Series. In Part I of the Series, we introduced the concept of gender mainstreaming in FTAs and the different approaches the FTAs have used to entrench ?gender mainstreaming in economic integration. Part II ??focused on ?the gender chapters / clauses in the AfCFTA and the RECS in Africa.

What has become clear in previous editions of this Series is that a number of FTAs have made attempts at mainstreaming gender in their provisions. However, it is to be noted that in this category the respective gender provisions / clauses are best endeavour ?and indeed merely aspirational. The essence of this is that the Countries ?who are in these FTAs ?as not obligated ?to take any measures , legislative or otherwise that can ?ensure gender inclusion in their trade arrangements.

This edition looks at what a best approach to gender mainstreaming in an FTA ?should look like. There is certainly no perfect example of an FTA world over that can serve as a model. However ?different FTAs have pursued these critical issues through various means, and we highlight some of these approaches , and whether we feel they are progressive in ensuring that trade becomes as inclusive as possible.

The Modernized Canada-Israel Free Trade Agreement (CIFTA)

Chapter 13 of the Canada Israel Agreement contains gender equality provisions in line with SDG 5. Parties to this FTA also reaffirm their obligations on trade and labour as related to gender.

The Canada-Israel FTA also stands out as it seeks to empower women in the non-traditional areas of science, technology and innovation, a break from the usual areas of business that women are often supported in.

Under Chapter 13, the Canada-Chile Agreement establishes a trade and gender committee with a mandate to support policies and make recommendations to parties on integration of gender-related commitments and activities into their work. This is a big step in ensuring ender mainstreaming is happening outside of mere commitments. It is a follow up measure to ensure that gender is an integral part of activities arising out of the FTA.

The Chapter also has a dispute resolution clause where, if parties do not agree on implementation of provisions on Trade and gender, they can submit the matter to dispute settlement under Chapter 19 (Dispute Settlement).

US-Mexico-Canada Agreement

Chapter 23 of the US-Mexico-Canada Agreement addresses labour rights as a shared commitment between the parties. These include gender rights such as elimination of discrimination in employment and occupation, protection of workers against sexual harassment and protection of workers from employment discrimination based on sexual orientation, gender identity and caregiving responsibilities. Parties are also required to give protected leave for birth or adoption of a child and care of family members as well as protection against wage discrimination.

Under chapter 23, the parties commit to strengthen their local tribunals to resolve issues arising out of the chapter. In Article 23.9, the US-Mexico-Canada FTA goes as far as requiring parties to give procedural guarantees to ensure each person with interest in matters arising from the Labor chapter of the FTA. To this end, the FTA requires state parties to ensure that local labour tribunals are fair, equitable and transparent, comply with due process of the law, do not require unreasonable fee or unwarranted time limits and delays and that they are open to the public. This is a bid to ensure that labour disputes arising from chapter 23 which also include gender labour rights are heard fairly and expeditiously through parties’ internal mechanisms.

Chapter 23 also introduces the methods of cooperation and labour consultation to resolve labour disputes. All avenues under this chapter must be exhausted before resorting to dispute settlement avenues provided by Chapter 31 of the FTA. What this means is that the door of labour disputes has been kept open to dispute resolution mechanisms under Chapter 31 of the FTA even if it is as a last resort after exhaustion of prescribed methods under chapter 23.

Canada-Chile Free Trade Agreement

Canada-Chile Free Trade Agreement ?Chapter on Gender and Trade ?in its general ?reaffirms the SDGs related to gender equity as well as the CEDAW framework. ?Like the CIFTA, the agreement also establishes the Gender Committee, and ?a mandatory consultation framework which is to the effect that member states ?must make all possible efforts, through dialogue, consultations, and cooperation, to resolve any matter that may arise in regard to its Gender and Trade Chapter. This ringfences the trade and gender related dispute resolutions from the often lengthy and ??bureaucratic dispute resolution processes that most FTA have. Accordingly, this approach can also be seen a good practice ?that can further make trade more ?gender inclusive. However, a critical view of it would also point to the fact that excluding gender and trade issues from the ?main dispute resolution mechanisms ?may have the effect of making such issues appear smaller as compared to the issues that may arise from the implementation of the FTA.

In conclusion…

What the ?FTAs? discussed above show is that it is possible ?for gender clauses to be enforceable under ?the dispute resolution mechanisms in the respective ?FTAs. The Canada-Israel ?FTA in particular is an excellent ?illustration that gender commitments can be followed up in trade activities arising from FTAs through follow up and advisory mechanisms. This makes gender mainstreaming an active and ongoing process that is continuously implemented.