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The Gender Dynamics of Trade and Investment and the Post 2015 Development Agenda: A Developing Country Perspective

By Ranja Sengupta1

Introduction

In an increasingly globalised world, the impact of trade and investment liberalisation is an important area of policy focus. In the current context, the gender impact of trade policy must be paid serious attention especially as it is increasingly evident that trade policy is not ‘gender neutral’. This is because women’s economic and social positions are weaker, their rights are not well defined and a harshly competitive system hurts the weakest the most. The impact on women is partly general2 and partly gender specific, determined by the way they are integrated into specific sectors.

The nature of international trade itself is undergoing continuous changes, with autonomous liberalization undertaken by countries, multilateral commitments at the WTO, as well as rapid advances in bilateral trade and investment agreements (FTAs) and Bilateral Investment treaties (BITs)/ Bilateral Investment Promotion Agreements (BIPAs). Globally 575 FTAs or RTAs were notified to the WTO (until July 31, 2013) of which 379 are in force. There are 3196 international investment agreements including 2857 bilateral investment agreements or bilateral investment partnership agreements (BITs/ BIPAs) in force globally (UNCTAD Trade and Investment Report 2013). With the growing coverage of trade agreements spanning agriculture, industry, services, intellectual property rights, investment, government procurement and other areas, the interactions between provisions in the sector/area specific liberalisation policies create complicated and multilayered impacts. All these have a two‐way interaction with women’s access to critical physical, financial and human resources and access to basic services, with significant implications for their empowerment, livelihoods, health, socioeconomic status and well‐being. In many cases, the impact process is so complex that the gendered nature of it is apparent only after a deeper analysis. An area of increasing concern with development analysts, NGOs and academics is that the trade and gender issues are not properly raised and debated in the public sphere, and do not feature prominently in development discussions. In particular, this discussion is of great significance for the post 2015 development agenda. It is obvious that issues such as poverty, inequality, gender empowerment, women’s education and health cannot be addressed effectively unless structural issues are addressed. It is more important in the current context, as a meaningful global agenda must address global level policy issues which impact gender relations down to the grassroots. Goal 8 of the MDGs was weak in terms of implementation and accountability, and the current Goal 12 proposed in the HLP Report also has several shortcomings, including being gender insensitive. On the other hand, to address the gender impacts of international trade and investment requires an inter weaving of several areas such as access to health and education, to resources and to food with gender sensitive international policies. The Post 2015 development Agenda must therefore deal with this complex multilayered relationships if it has to indeed deliver on gender equality and women’s empowerment. This chapter attempts to enunciate some of the gender related impacts of international trade and investment mainly in the context of developing countries.

Gender Inequalities and Vulnerability

Gender discrimination is historically given in most countries; in resource ownership and control; access to finance; access to jobs and incomes; knowledge, education and skills; in accessing healthcare; in social relations and in several other areas. In fact it is not a developing country phenomenon alone, though it may be more prominent in less developed societies. In some regions, e.g. South Asia, Africa, Middle East, we see a prominent manifestation of gender inequalities.

1 Ranja Sengupta is based in New Delhi, India and works as Senior Researcher with Third World Network. She has worked extensively on agricultura, poverty and inequality, international trade and investment and impact on gender dynamics, SMEs, employment and development in general.

2 The impact on poor rural women may be partly determined, for example, by the way all poorer farmers are affected.

It is well documented that women also face more poverty, including time poverty. Female headed Households (FHHH) have often shown higher poverty rates3. Working poverty is also high as revealed by country specific data, which shows a higher rate for women. For example, in India 86.4 percent of working women are poor compared to 81.45 percent of men (at less than USD2 per day) and 36.1 percent of working women are poor compared to 30 percent of men (at less than USD 1 a day).

Given these inequalities, women are sometimes more vulnerable to the adverse impacts of macro and external sector policies which do not take them into account. At the same time, they may be less able to make use of the benefits that may accrue to specific sectors or economic groups. Women are also more vulnerable to shocks such as climate change, economic crisis, etc. These factors then can actually exacerbate the given inequalities further and can create unforeseen situations which are much more difficult to deal with.

The Gender Dimension of International Trade and Investment

In the context of a larger than life influence of trade and investment globally, it is pertinent to ask whether these policies improve gender disparities or worsen them. We need to know exactly where and how they impact women’s lives. The current trade paradigm is also supposed to increase growth, decrease inequalities in the long run, ensure full employment for all countries (especially so that developing countries can ‘catch up’) but this has been much discounted from the current  evidence. Trade need not necessarily lead to growth, and can increase inequalities especially in the short run, especially across sectors, income, gender and social groups. In addition, economic growth, even if it did result from trade, does not always lead to gender equality, as seen in South Asia.

There are clear linkages through which policies of international trade and investment, whether autonomously driven or by specific commitments in international agreements, can affect gender dynamics. These may be categorised among the following areas;

􀂾 Work Sphere affecting employment and incomes, terms of employment, work conditions

􀂾 Access to resources (land, water, credit, technology)

􀂾 Access to basic services (e.g. health, education)

􀂾 Home situation affecting care work, unpaid work, within household inequality/empowerment

􀂾 Migration including both domestic and international of both men and women

􀂾 Women as consumers

􀂾 Affecting the policy space for gender friendly policies, social policies

In addition, several other areas may be affected in complicated ways some of which we may not have even begun to understand.

A Sector Wise Look: Agriculture

Agriculture supports a large number of the world population, especially in developing countries. Women are particularly dependent on the primary sector and are engaged in crop cultivation and animal husbandry which engages 44.4 percent of women workers in developing countries. Agriculture is a natural mainstay for women in developing countries because it can be combined easily with work at home, and requires less skill and financial resources. Women are willing to be in the informal economy and earn zero or low wages that this sector offers. Most important, women take the final responsibility to put food on the table for the family and staying close to food sources comes as a natural option. As producers and sellers of food, they also produce for home consumption and so livelihoods in this context also imply a direct access to food. However, they still do not have much control over productive resources such as land, credit, water and their decision making powers are also limited. The agriculture sector also houses the largest number of poor and women among the poor.

Under the WTO, agricultural trade was opened up under the Agreemet on Agriculture (AoA) which involved providing market access to each other by capping (binding) import duties on foreign imports, laying down uniformly applicable (to all WTO members) standards & processes, laying down safeguard mechanisms for developing countries (Special Products or SP and Special Safeguard Mechanism or SSM) and eliminating trade distorting export and domestic subsides which are given mainly by the developed countries. Interestingly the last has seen very little progress and developed countries such as the USA and EU have continued to give subsidies under various disguises threatening access for small farmers in developing countries, many of whom are women. At the same time subsidies which could be given by developing country members are mostly banned under the WTO rules, making it impossible for governments (especially in large countries) even to support food subsidy for poor consumers and price support for small farmers.

The AoA has been criticised for being gender insensitive and several gender related concerns have been raised by analysts. Criterion of using ‘gender sensitive products’ to protect products with high engagement of women from import competition has been suggested by gender analysts but has not gained much ground yet.

Moreover trade liberalisation has not been able to control speculation (further boosted by the crisis in financial markets), concentration in global food markets and the resultant volatility in international prices has been hurting both poor farmers and consumers, and has threatened food security across developing countries.

With the advent of bilateral or plurilateral Free Trade Agreements (FTAs), liberalisation has been deepened and widened at the same time. Under FTAs, Import duties on agricultural products are reduced to zero as opposed to simply binding duties as under the WTO. SP, SSM safeguards have to be negotiated hard, and some developed countries ask that export measures, left largely uncontrolled by the WTO, be eliminated.

Interestingly, under FTAs, one area that cannot be touched is developed country subsidies which are supposed to be negotiated multilaterally. These threaten market for women farmers and workers. However women have got jobs sometimes in export based agricultural sectors such as plantation products, processed food products, but the growth is still limited and it does take women away from basic food cultivation.

In addition, developed countries often demand WTO plus provisions in other areas. Under intellectual property rights (IPRs), patenting of life, control of seeds (through UPOV 1991), and pesticides (through data exclusivity) are brought in (see Sections on intellectual property rights below for more details). Strong investment chapters under such FTAs can give widespread access to land and natural resources. Foreign Direct Investment (FDI) also leads to mechanisation in traditional agriculture, which may be good for productivity increases but it has a gender impact as such mechanisation takes away women’s jobs from low skilled labour intensive segments. Service delivery machanisms such as retail, credit and extension services may also be impacted.

NAFTA and Women in Mexican Agriculture4

• US subsidised corn and bean entered Mexico after NAFTA

• Devastated Mexican Agriculture, 1.3 million jobs lost mainly of small and subsistence farmers

• Women farmers are largely small: 70.8% of women farmers cultivated plots less than 2 hectares

• Poverty levels increased by 50% in female headed households

• Wage per hour fell from 10.3 pesos in 1991 to 1.3 Pesos in 2003 (at 1994 constant pesos), gender wage disparity increased

• Similar impact on wages in Andean Community (Peru, Colombia)

It is clear that a full liberalisation of the agriculture sector through multiple mechanisms will reduce protection for women farmers and workers in developing countries. In addition, protective mechanisms such as sensitive products (using a gender criterion) and SSMs are being increasingly restricted. Women will also be hurt more public procurement. Their dependence on the resources threatened under these agreements is higher and their ability to shift out of agriculture is limited. Their role as food providers gets severely undermined not only by losses in production and livelihoods, but also from threats to natural resources, markets and technologies which are important for direct access to food as well as instruments for sustaining production and sales. Gender sensitivities need to be taken into account in all aspects of trade agreements, while combining it with gender friendly development policies. 

4 Speildoch, Alexandra (20 4)

A Sector Wise Look: Industry

Trade liberalization has also taken place across industrial sectors across the developing world, following either autonomous, WTO promoted or FTA pushed frameworks. The WTO has pushed member states to cut duties according to a Swiss Formulae, and has increasingly linked duty cuts to the special and differential treatment developing countries can receive. Similar to agriculture, the industrial sector has witnessed deeper tariff cuts under FTAs on applied duties. Moreover further liberalization, by pushing for zero duties in specific sectors (Sectorals) and not permitting full exclusion of any sector (Anti Concentration Clause) is being promoted through both the frameworks. The North‐South FTAs also often talk about labour and environment standards.

There has been a significant increase in women’s employment in exportbased sectors some parts of the developing world, especially visible in Asia; specifically in textiles and garments, leather, food processing and marine products. The export led growth in these sectors has often been ascribed to women. This has arguably led to a process that has been linked to women’s empowerment.

However while acknowledging the positives of such job opportunities, the literature also points to significant concerns. The first issue is of sustenance. Seguino and Grown5, among others, have shown that semiindustrialized economies that emphasize export manufacturing have experienced a rise in the female share of employment, but only in their early phases of industrialization and this effect tends to reverse over the course of industrial development.

Second, along with gains in some industries, most of which are of low value, there has been simultaneous loss in uncompetitive sectors across Africa, Asia and Latin America leading to job and income losses. In addition, small suppliers have in particular been often hit (for example in Textiles & Apparels in Cambodia). Small enterprises find it more difficult to survive under strong competition as they often face discrepancies in access to credit, technology, infrastructure etc. This has a gender dimension as SMEs are owned by and employ more women worldwide.

Women and Employment in Africa: Some Cases6

In Nigeria, Tunisia, Morocco, Ghana, Senegal there was a decline in women’s employment in manufacturing, especially in textiles.

In Jamaica, jobs in manufacturing (textiles), services sector (a major women’s employer, 72% of women), declined as a result of CARICOM, CSME. NAFTA shifted female jobs from export processing zones in Jamaica to Mexico. Consumption by FHHH fell by 14.5%, of MHHH by only 1.7%.

In Madagascar, there was an increase in women’s employment in textiles.

85% of women had never earned before. But in spite of comparable education, women were confined to unskilled jobs with low wages, as well as temporary jobs. Unskilled wages were stagnant and there was an increase in gender wage gap.

Third and of critical importance, while women have been hired, it has been on adverse terms. The work is mainly informal with increased casualisation all over the developing world, for example in Asia, in Mexican Maquiladoras etc. Employment has been volatile with higher rates of reallocation. Significant wage disparity and job segregation persists or even and labour saving FDI especially in labour‐intensive segments have meant that women are the first to. Working conditions have been kept adverse, with minimum investment in providing better work conditions. Often no leaves are given to female employees, sometimes no toilet break, and workers often inhale materials with severe adverse impacts on health (as it is the case in the production of textile, garments, tobacco and chemicals). So while women have been ascribed the credit for the gain in exports, it is because they have been exploited and they have been used as necessary adjustors in a situation of volatile trade. Such conditions are not a fall‐out but a natural driver of this kind of competitiveness and women have been used as pawns in this game of competition. Such conditions are perpetuating, as they are key to developing countries continuing to gain from trade. Simultaneously there has been increase in unpaid work, and self‐employment.

 5 Seguino and Grown (2006) - 6 UNCTAD (2009).

Example of Asia: The Garment Sector in Bangladesh7

• Domestic liberalization and the growth of the garments industry has led to increase in unskilled women’s employment in garment sector

• 46% contribution to family incomes by females’ employment leading to empowerment within HH

• Women’s share in employment 90%, Wage Disparity 50%

• Women are limited to low skilled segments, whereas wages have grown more in skilled jobs

• Hazardous conditions of work, unhealthy impacts, sometimes not even toilet breaks are allowed

• Decrease in time for house work, leisure, education

• 40% of female workers do not receive medical treatment (33% for men)

• Only 35% of female workers got leave when asked (60% for men)

In sum, in sectors which do well, women gain jobs but gains are less than proportionate compared to gains for men8. Where sectors lose, women lose disproportionately and are the first ones to be fired. Women are used as a wedge to adjust to trade volatility, and under this logic they must necessarily not be given any rights. The gender wage gap increases growth in countries at low levels of growth. Skill and resource gap is only part of the explanation, social relations constitute the other major part as women have limited rights and men are seen as legitimate jobholders. It is positive that they get employment, but a lot more needs to be done to address disparities, both from equity and efficiency points of view.

Given this context it is not surprising that women lose disproportionately more in times of crisis. Women’s jobs in export based sectors go faster (e.g. under the East Asian crisis, women lost 7 times the jobs of men in South Korea) and even when jobs are not cut, wages are cut further and the wage cut is higher for women9. Unpaid work also increases in times of crisis, together with significant worsening of conditions of work.

Another contentious issue is labour standards (LS) in North‐South FTAs, which have been resisted most often by developing countries on grounds that these pose actually as non‐tariff barriers for developing countries. LS can arguably help women, but can be tricky under bilateral trade agreements as several critical issues crop up. Will jobs go to another country that does not upgrade LS?

Another question is whether developing countries become uncompetitive while supplying to developed partners who want these chapters. The overall impact on employment is therefore unclear.

The policy issues are complex in this context. It is important to remember that in many cases women have gained, yet gains are maximised where the government and NGO’s have intervened in policy, for example, in the cases of Kenyan women workers in flower horticulture and Burkina Faso’s women workers in the shea sector. It is also important to remember that policy can backfire and the opposite impact can occur. In the case of South Korea, a policy to address wage disparity led to older women workers being fired. In addition, policy space may be eroded by FTA/ investment agreement provisions on investment protection (for example: any labour law that reduces profits of investors), and therefor limit countries’ capacities to intervene (see sections on investment below).

7 Raihan, Khatoon, Husain & Rahman 2007, Van Staveren et al 2007, Paul, Majumdar and Begum 2000

8 UNCTAD (2008); USAID (2006)

9 Hirway and Prabhu (2009).

Finally, it is undeniable that to protect women workers, there is need for a comprehensive trade, macroeconomic and social policy package. A social security package is an important ingredient of this, which must be seen not only as a welfare measure but also as a boost for domestic demand.

A Sector Wise Look: Services

Global trade in services has witnessed a significant growth over the past two decades and several developing countries such as India, China, Philippines, are now important players in the world market. However, their competitiveness is often limited to a few sub sectors and developed countries are the ones that dominate services trade globally.

The service sector and trade thereof is actually one of the most critical drivers of gender relations in the world today. While a growing service sector can be a source of jobs for women, which sometimes can be specifically suited to women’s needs, the sector must include critical provisions in health, education, water, energy and credit that are essential for basic human well being as well as for people’s economic and social development.

In particular, it has a clear gender‐differentiated impact given women’s critical need, but limited access to such services in developing countries. The impacts vis a vis employment and access to services reinforce each other and can help perpetuate or break a cycle of gender disparities.

The service sector and access issues also have important relevance for women’s care work. Clearly, in the presence of affordable and well‐distributed services in water, healthcare, education, etc., generally publicly provided, the burden on women to supplement these services with their care work is much less. Whenever there has been contraction of such services, whether under a crisis or under structural adjustment programmes or due to other reasons, the burden of care work has increased.

Trade in services takes place through four modes, each with its own gender dimension.

Mode 1 refers to Cross Border Supply (for example in sectors like Information and Technology (IT) ) of services. While this can offer significant opportunities to women, as in India, there are gender specific concerns as well. Because the jobs created in the IT sector are skilled, the number of jobs is extremely limited even in India which accounts for less than 3 percent of urban women’s jobs and has no presence in rural areas. This sector is known for its adverse working hours for women, wage differences and job segregation where women cannot enter high‐level jobs. For example, in India’s IT sector women account for 40‐50 percent in Business Process Outsourcing but only 25 percent for the higher value added software segments.10 In addition, 70 percent of women workers feel work hours are unfavourable for women (especially for EU, US clients), and 94 percent of married women felt a negative effect on children’s education.

Mode 2 refers to Consumption Abroad (for example in sectors like tourism). These sectors have offered women considerable job opportunities though issues such as sex tourism and medical tourism have been issues of concern. The rapid development of medical tourism, in several developing countries such as Thailand, Jordan and India, have created job opportunities for women health professionals but issues such as surrogacy which such tourism has tended to promote, have often worked against women’s health and psychological well being. Regulation of these activities has also become increasingly difficult, often because of FDI related issues (see investment issues below).

Mode 3 refers to Commercial Presence (focused on investment in service sectors). While GATs (under WTO) has been limited by a voluntary offer‐ system, increasing pressure to open up Mode 3 is now exerted through FTAs, especially North‐South ones. While FDI can ostensibly generate access where services are underdeveloped there are several challenges to consider. FDI in services can threaten access in critical services such as water, banking, healthcare and education by chasing out public investment, raising user fees and limiting business to “safe” urban areas without including rural areas. There is also evidence of FDI threatening jobs in gender sensitive informal sectors such as retail and waste. In addition there are serious regulatory issues which are discussed below.

Banking Liberalisation in India and Credit Access for Women

10 Sengupta amd Sharma (2009)

11 Sengupta Ranja (2011), No. 2.

Foreign banks: 27.8% of activity in derivatives, stocks etc, 7.9% to credit

Proportion of women account holders (23.8%) but disbursement lowest compared to all others (only 7.9%).

Comparatively Regional Rural Banks (RRBs) do much better: 25.5% of accounts, 19.6% of credit to women

Foreign banks avoid risk and concentrate only in metros (81.4% of branches) and in urban areas (17.9% of branches).

Urban lending to women is only 24.4% of total lending to women and 21.1% of women borrowers

Foreign Banks lending to Agriculture sector Is 0.01% (2008, of their total credit), and to SMEs 1.2% (2007, % of total credit)

Mode 4 or the ‘Movement of Professionals’ is of great interest to women care workers.

Currently the global arena has seen a significant increase in migration of nurses and women care workers. Most developing countries have a significant interest in this as remittances form an important chunk of their incomes. This also is meant to balance the anomaly in encouraging the free trade of goods but not of labour.

Mode 4 could in theory help women workers like nurses and caregivers by ensuring more jobs, incomes and better protection. However the framework under which this has evolved under the WTO and FTAs is very limited. First, Mode 4 is limited to temporary movement, often linked to commercial presence as a prerequisite. Second, it is limited to skilled professionals only and women domestic workers are not often considered skilled. As a result most that Mode 4 has seen in recent times is some very limited advancement in jobs for nurses (e.g. under India‐Japan FTA) but nothing for care workers is on the card. Third, there are strict barriers in most countries (Economic Needs Test or ENT, language test, pre employment requirements, confinement to sector, and an absence of wage parity) which women migrants often find more difficult to meet. Fourth, most migrant workers have limited rights, work in the informal sectors and face exploitation both domestically and abroad (e.g. China’s dagonmei, Mexican women workers in US) but Mode 4 is unable to address this aspect. There has also been criticism that Mode 4 has resulted in encouraging sex tourism.

While encouraging Mode 4 could have some benefits for women in developing countries, critics have also argued that there is a cost to the country of sending workers out. For example, when health workers go out there can be adverse impact on availability of health professionals and health services within a country.

Women and the poor will likely suffer disproportionately from a constraint on quality health services. So Mode 4 must be promoted to be expansive and effective while keeping domestic needs in mind.

Intellectual Property Rights (IPRs) and Access to Medicines

The WTO had established the TRIPs regime in 1995 and member countries have gradually enacted or amended their patent and other Intellectual Property (IP) laws in accordance with it. The increasing recognition of strong IP rights has already increased costs of many patented drugs. It has also threatened the cheap supply of medicines from the generic industry based in several countries such as India, China, Thailand, Brazil and South Africa. In developing countries, often with severely unequal health indicators and access, this threat to access to medicines is of critical concern.

Access to medicine and healthcare has a clear gender component. Women already face lower access to healthcare and medicines. High maternal mortality in Africa, South Asia and high undernourishment among women and children in Africa and Asia validate these concerns. So has been the increase in incidence of HIV/AIDs among women with lower access to treatment and discrimination. As costs go up women are often forced to forego treatment, as is clear in the case of HIV infected couples. Increase in fertility related treatment often at high prices has also been a specific trend. Prices of treatments for breast cancer has also increased prohibitively. For example, Trastumazab, a key medicine for breast cancer has been patented in India and is available at the price of Rs. 124,000 per month per person where the treatment must continue for 52 weeks. Women in developing countries both practice and use traditional medicines extensively which can also be impacted by IPRs.

Under TRIPS, governments were supposed to provide stricter protection of IP, which has increased medicine prices worldwide as well as affected access to them in cases of critical diseases. However innovation (the stated objective of stronger IPRs), especially in neglected diseases, has not been forthcoming. Still, the TRIPs framework did offer some flexibility such as provisions for compulsory licensing, parallel imports of medicines, sui generis protection for plants and animals, protection of traditional knowledge, etc.

However under FTAs, especially North‐South FTAs, developed regions and countries such as the EU and USA often ask developing partners to make IPR commitments beyond the TRIPS agreement. As a result, the global IPR system may become even stronger. In addition, several flexibilities such as compulsory licenses offered by TRIPS are being continuously challenged, further aggravating the situation. The FTAs often include provisions such as data exclusivity (DE)12, patent term extension patent linkage (linking of the patent with marketing rights) and IP enforcement (including border measures that allow countries to seize critical medicine supplies in transit for alleged IP violation), among others. In Jordan, DE provision under an FTA with the US resulted in medicine prices being 200‐600% higher compared to neighbouring Egypt, where DE was not in operation13.

Intellectual Property Rights, Traditional Knowledge (TK) and Biodiversity14

Women’s are preservers of seeds, of traditional systems of cultivation, of biodiversity as they depend more on these traditional systems and also help to nurture their diversity. These are under threat from the current IPR systems. Even the way traditional knowledge is currently being ‘protected’ by the mainstream approach actually either takes access away from communities, or lures them into the IPR system in the name of rights, reward or recognition. The IPR system is inadequate to deal with people's knowledge systems, which neither privatised the knowledge nor were based on individual inventorship. For most local groups and women their know‐how of the living world is intellectual heritage and not intellectual property. Despite what is said globally and nationally about patents, plant variety protection, geographical indications, etc. mere accommodating women within them does not effect real justice to them. For example, the relation of India's Biological Diversity Act with these IPR laws has to be critically viewed, as this conservation law is also fast becoming a venue to approve IPR applications on India's biological resources and related knowledge.

Conditions on Investment, Investment Agreements and Policy Space

The sections above highlight how FDI can pose specific gender concerns in developing countries. However there are two important areas of concern related to FDI focused on the specific mechanisms through which FDI enters into a country. This relates to the terms and conditions of bringing in FDI which could be through investment protection agreements, trade and investment agreements, or through autonomous routes.

The first relates to the fact that conditions on FDI, referred to as performance requirements (PRS) are getting increasingly diluted globally, either through the governments’ autonomous policies or through investment chapters in Free Trade Agreements. For example, in India the conditions imposed on allowing FDI into multibrand retail (a recently announced and very controversial policy shift) are already getting diluted. Many governments have also increasingly removed conditions related to mandatory technology transfer, very important for domestic growth and also for creating opportunities in SMEs where a lot of women work as entrepreneurs and employees.

The second concern stems from the rapid growth of Bilateral Investment Treatments (BITs) and Bilateral Investment Promotion and Protection Agreesments (BIPAs), which do not give market access to investors but gives them very strong protection and legal rights. While this is seen by many as necessary for attracting FDI, others argue that this has severely limited the policy space of governments to regulate in national interest.

Under BITs / BIPAs, foreign investors have the right to sue national governments in secret arbitration cases in international tribunals if they perceive any violation of their investment. Several public interest regulations by governments across the world have been challenged. For example, Phillip Morris has sued a number of governments including Australia and Uruguay for trying to bring about plain packaging on tobacco packs. This is already acting as severe policy deterrence and has the potential to freeze policy regulation in the future and poses a significant challenge to future regulations that may adversely affect women’s rights and space.

12 Under DE, national regulators cannot refer to trial data submitted by the original manufacturer to grant marketing rights to a generic producer for a certain period of time. So generic producers will now have to submit their own data and repeat clinical trials if they have to enter the market.

13 (Oxfam 2007)

14 This section draws on Shalini Bhutani (2011), “IPRs, Bio diversity and Traditional Knowledge”, at Workshop for the Media on

“International Trade and Gender Dynamics in India”, organized by CLRA, Centad, TWN and HBF, 10 August 2012, New Delhi.

For instance, it may become difficult for governments to bring in future policy regulation in areas where regulation is still weak, for example surrogacy laws and medical tourism, which impact women significantly.

Another critical area to be affected by BITs and BIPAs is natural resources, which women traditionally use and depend on. The majority of the known outstanding investor‐state cases under US’ FTAs and BITs (totalling $11 billion in claims) relate to natural resource policies. Nearly half of the 129 cases pending before the World Bank’s investment dispute facility relate to natural resources. Burlington Resources Vs. Ecuador, pending, reveals conflicts between government duties to protect human and indigenous rights, on the one hand, and obligations to protect foreign investors. Public health and environment regulations, areas on which women and children are critically dependent, are also being challenged globally. For example, in the case of Renco Vs. Peru, lead poisoning of 162 La Oroyan children led to the Peruvian government taking measures against the company but Renco sued Peru for 800 million USD under the US‐Peru FTA.

Policy Options

There is an increasing loss of policy space from various directions for governments to enact policies in social needs. For example, one might consider the loss of tariff revenue that can lead to lower spending on social sectors, or the loss of access for weaker sections of the population. Governments are also losing the space to protect natural resources and keep control in communities; among other relevant policy restrictions that impose pressure to ensure women’s interests and their development.

From an overview of issues, it is also evident that while goods trade has its own challenges, trade’s movement beyond goods may not always be beneficial to women, and gender insensitivity is often more intrinsic in these issues. There is therefore need for higher regulation and monitoring of these areas for gender impacts. There is a need to focus government policies to address disparities (in resources, skills, etc.) and protect sectors and workers until these are addressed. There is a dire need to address labour concerns and in particular the casualisation of work. There is also the need for social  rotection measures with gender specific focus. Finally it is of critical importance to assess what kind of development parameters we need in place before we can go in for rapid liberalization that affects specific groups in very particular ways. There are certain policy options that can be pursued at national or global levels in order to take these concerns into account:

􀁹 Changes in trade and investment policy: At national and global levels, monitor gender impacts and take protective measures where impacts are expected to be harmful; not compromise governments’ policy space to regulate in interests of vulnerable sections; strengthen and implement countries’ extra territorial obligations; identify and protect gender sensitive products; ease processes (waiving of license and other fees), create Research and Development resources for women entrepreneurs, credit and marketing facilities, etc.

􀁹 Changes in domestic macroeconomic policies: Create public employment; gender mainstreaming of macro economic policy design; implement preferential policies across sectors; planned investment in creating infrastructure; facilitate access to technology and ensure access to common natural resources

􀁹 Changes in labour and social policies: Update labour laws and labour standards including wage uniformity policy; implement regulations on working conditions, social security law for unorganised workers, maternity benefits, public facilities for crèche and schools for women workers’ children; invest in nutrition, health and education. These will also help boost demand and create market.

􀁹 Need for deeper introspection for protection of women: Implement policies focused on changing social mindsets through education, awareness building, etc.

􀁹 Develop women’s political empowerment and decisionmaking content in all forms of policymaking, especially external sector policies.

Recommendations related to international trade and investment issues for a Post 2015 Agenda

Based on the analyses above, some recommendations are provided below. The list is ambitious but the issues of international policy go to the heart of gender relations and impact multiple aspects of people’s lives. Some  indicators are cross cutting and may appear more than once. The  recommendations place significant attention on the global policy framework but include national and local level interventions as well. The list is indicative and certainly not exhaustive.

1. Framework

􀂃 Interweave gender dimensions in all goals; and especially under global cooperation for development (MGD Goal 8) or under “Create a Global Enabling Environment and Catalyze Long‐Term Finance” (Goal 12 of the HLP Report). Simultaneously interweave international components under the gender related goals (e.g. Goal 2 of the HLP Report) but also in other goals, for example, in goals related to employment (Goal 8 of the HLP Report), food security and nutrition (Goal 5) of the HLP Report).

􀂃 Address global framework and structural issues as intrinsic to attainment of all goals.

􀂃 Try to influence policymaking at all levels: National/state, trade policy/domestic policy, other

􀂃 Use indicators that lend themselves to more disaggregated analyses

􀂃 Promote gender specific impact analyses and research on trade and investment policies

2. Specific Issues

􀂃 Acknowledge and address the link between international issues and gender relations

􀀹 Strengthen Goal 8, make it accountable and undertake meaningful reform of global trade, finance, investment, IPR rules (and associated technology transfer arrangements) so that policy space of national governments to monitor and regulate such arrangements in public interest, e.g. protecting public health, environment, natural resources, and in the interest of gender and social justice is protected;

􀀹 Apply the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights in the application of trade and investment agreements

􀀹 Ensure Means of Implementation (MOI) with every gender related goal and target (as well as with other goals).

􀀹 Allow conditions (performance requirements) to be imposed on FDI, whether autonomous or through international agreements, so that it serves the interests of the host country, especially a developing country: FDI should mandatorily create jobs, transfer technology and transmit skills and practices from which the recipient population can benefit. Conditions can also be imposed to address the issues of inequalities that may stem from the natural operation of FDI (e.g. not going to rural areas).

􀂃 Women’s work in sectors linked to international trade and investment

􀀹 Strengthen or add targets and indicators on wage inequality, job segregation, informalisation / casualisation of work, job benefits including maternity benefits in export based sectors;

􀀹 Ensure access to productive resources (physical, financial and human) such as land, water, credit, infrastructure, skills and technology for women by making public investment in these areas, if needed;

􀀹 Enact policies including external sector policies to protect and promote women’s entrepreneurship especially in SMEs with access to credit, infrastructure , technology, and market access on fair terms.

􀀹 Recognise care work as critical to survival of the economy and society, and promote means to ease the burden of care work (e.g. by necessarily providing public services/sourcing of healthcare, education, energy, water)

􀀹 Provide strong social protection/security, safety net addressing the needs of vulnerable and marginalised groups and provision of public services.

􀂃 Women’s Access to Resources and Critical Services

􀀹 Promote women's equitable access to and control over resources regarding the use of land, property, water, ocean, forests, and other forms of natural resources.

􀀹 Ensure women’s access to agriculture and food sources, including the access to seeds, to cultivate, to gather from common resources.

􀀹 Ensure women’s access to knowledge, including traditional knowledge, intellectual and cultural property and therefore to develop national/ local IPR strategies in keeping with needs of specific groups.

􀀹 Ensure that trade and investment policies do not impede women’s access to basic services including quality education and skill development opportunities; healthcare including access to medicines; women’s sexual and reproductive healthcare including safe abortion, and maternity care, Sexually Transmitted Infections and HIV prevention and treatment; to safe and accessible drinking water; and to sustainable and affordable energy sources.

􀀹 Ensure external sector policies and global rules do not impede on governments’ policy space to support large scale public programmes to ensure basic human sustenance and well being, such as food, health, education etc, especially of vulnerable groups

􀀹 Actively penalize harmful FDI in activities that affect the health of people and women, and the environment. Specific areas could be mining, nuclear energy, and chemicals.15

3. Strengthen the Institutional Framework

􀀹 Include economic and democratic governance of international policies at both global, national and if needed, at local levels, and address gender specific concerns within this framework. This includes strengthening transparency, accountability and review mechanisms at national levels (such as local government review, parliamentary processes, independent review commission etc), as well as global levels (UN bodies, International Financial Institutions, etc.).

􀀹 Involve participation of CSOs, in particular, women’s groups, in trade and investment policymaking and in the process of reviews.

􀀹 Design indicators such that policies that aim to achieve them do not have retrograde impacts.

References and resources:

Cagatay Nilufer (1998) “Gender and Poverty”, UNDP WP‐5, Social Development and Poverty Elimination Division, May, Francis

Taylor Group, 2007. ISBN 978 0 415 43637 3

Jhabvala, Renana (2003) “Globalization, Liberalization and Women in the Informal Economy” in Veena Jha (ed) Trade, Globalisation,

and Gender: Evidence from South Asia, UNIFEM in collaboration with UNCTAD, New Delhi

Oxfam (2007) ‘All Costs, No Benefits: How Trips‐Plus Intellectual Property Rules in The Us‐Jordan FTA Affect Access To Medicines’,

Oxfam Briefing Paper, March

Randriamaro, Zo (2006) “Gender and Trade: Overview Report”, Bridge.

Sengupta, Ranja and Ashutosh Sharma (2009) The EU India FTA in Services and Impact on Women in India: Concern Areas, Centre

for Trade and Development and Heinrich Boell Foundation, New Delhi, December. Available at http://www.boellindia.

org/web/112‐536.html

Sengupta Ranja and others (2011) HBF‐TWN Trade and Gender Briefs, Vol. 1‐5, published by Heinrich Boell Foundation and Third

World Network, New Delhi.

Speildoch, Alexandra (2004) ‘NAFTA Through a Gender Lens: What "Free Trade" Pacts Mean for Women’, Centre of Concern and

IGTN Working Paper

Stephanie Seguino & Caren Grown (2006) "Gender equity and globalization: macroeconomic policy for developing countries,"

Journal of International Development, John Wiley & Sons, Ltd., vol. 18(8), pages 1081‐1104

Tran‐Nguyen, A‐N and A Beviglia Zampetti (2004) Trade and Gender: Opportunities and Challenges for Developing Countries,

UNCTAD, Geneva

UNCTAD (2009) Mainstreaming Gender in Trade Policy: Case Studies, UNCTAD, Geneva

UNDP (2005) “The Great Maze Regional and Bilateral Free Trade Agreements in Asia: Trends, Characteristics, and Implications for

Human Development”, Policy Paper, Asia‐Pacific Trade and Investment Initiative, UNDP Regional Centre in Colombo, December.

UNDP (2007) “Gender Dimensions of Intellectual Property and Traditional Medicinal Knowledge”, Ediscussion Paper, Asia‐Pacific

Trade and Investment Initiative, UNDP Regional Centre, Colombo

Van Staveren, Irene, Diane Elson, Caren Grown and Nilufer Cagatay (eds.) (2007) The Feminist Economics of Trade, Colchest:

Williams, M (2003) Gender Mainstreaming in the Multilateral Trading System, Commonwealth Secretariat, London

15 Women’s Group Statement, Conference on “Advancing the Post 2015 Sustainable Development Agenda”, available in section 4 of this publication

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ILO - International Labour Organization

http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_228969/lang--en/index.htm?shared_from=media-mail

 

SOCIAL DIMENSIONS OF FREE TRADE AGREEMENTS

 

Direct Link to Full 130-Page 2013 ILO Report:

http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/documents/publication/wcms_228965.pdf

 

Labour standards increasingly included in bilateral and regional free trade agreements. A new ILO report shows free trade agreements with measures relating to labour standards are on the rise and recommends measures to improve their effectiveness.

 

07 November 2013 - GENEVA (ILO News) – The number of trade agreements that include labour provisions has increased significantly over the past two decades, according to a new report by the International Labour Organization (ILO).

The report on the Social Dimensions of Free Trade Agreements says that there has been a substantial growth in the number of trade agreements featuring labour-related measures since the mid-1990s, including more ‘South-South agreements’ between developing countries.

In total, there were 58 agreements with labour provisions in June 2013 – almost a quarter of the total 248 trade agreements currently in force. These have included provisions on minimum working conditions, enforcement of national labour laws, as well as monitoring and enforcing labour standards.

“The increasing number of trade agreements which include provisions with respect to labour standards is a reflection of the growing awareness that trade liberalization, important as it is, should go hand-in-hand with progress on the employment and social front,” said Raymond Torres, Director, in charge of the ILO Research Department.

In some cases, the improvement of labour standards has been made a condition for the entry-into-force of agreements between countries. In the last six of seven US trade agreements, some improvements in labour standards were made prior to their coming into force.

In almost 60 per cent of cases, the agreements promote compliance with labour standards, without direct commercial or financial consequences attached to them. This often involves cooperation between partner countries to improve working conditions and commitments to maintain labour standards.

The report says that none of the agreements studied show signs of protectionism by the governments concerned. In all cases where issues were raised regarding the alleged non-compliance with a given labour provision, a significant effort was made to resolve the issue without resorting to sanctions. Indeed, no dispute regarding labour provisions has given rise to sanctions so far.

 

Effectiveness of labour provisions


The sheer variety of labour clauses with different legal and institutional implications makes it difficult to generalize about their effects.

According to the report, when conditions are applied at the pre-ratification stage, they sometimes lead to significant changes in labour legislation, such as improvements in labour inspection or the adoption of new legal protections, especially in the area of freedom of association.

When they are introduced after the deal has been signed, complaint mechanisms sometimes helped to ensure compliance with existing labour laws. In addition, there has often been a wide range of cooperative activities among signatory parties after ratification. For example the MERCOSUR* Regional Plan on Labour Inspection has triggered joint inspection activities, often facilitating improvements in national practice.

The report suggests several avenues for improving the effectiveness of labour provisions in trade agreements, including:

  • Specific labour-related development objectives to be delivered in a set time-frame, linked to economic incentives.
  • Increased synergies between the labour provisions of different bilateral trade agreements.
  • Greater consultation of employer and worker organizations in the negotiation and implementation of labour provisions.
  • Improved coherence between labour provisions in trade agreements and relevant ILO instruments.