Developing rules for non-discriminatory domestic regulations remains one of the key elements of the unfinished agenda of the GATS. Negotiations in the Working Group on Domestic Regulation have produced a considerable level of consensus in recent years, but some critics claim that this consensus was reached at the expense of developing only shallow disciplines. In any event, fully-fledged Domestic Regulation disciplines have not yet been finalized in the WTO context. At the same time, numerous regional and bilateral trade agreements (PTAs) covering trade in services have been concluded since the entry into force of the GATS. This raises the question of whether and to what extent such PTAs have developed any further disciplines on domestic regulation and whether such disciplines could be used as a model for the GATS. Initial research suggests that the potential for more advanced general rules on domestic regulation in PTAs may not be as significant as one would expect. However, many of these agreements contain chapters on regulatory rules and principles for specific sectors which should be further studied and developed.
The chapter contains an overview of the most relevant aspects and questions of the relationship between trade agreements and human rights. It argues that the impact of trade agreements on human rights should be seen as part of the broader context of the impact of business and human rights. The chapter also discusses policy proposals on trade agreements which have been developed in the business and human rights discourse and suggests areas of further research. The chapter begins with a brief recollection of the main reference points to trade agreements in the business and human rights debate and with general observations on the impact of trade and trade agreements on human rights. Subsequently, the chapter addresses the question how potential conflicts between trade agreements and human rights agreements can be addressed based on general public international law. This part also analyses the contested issue of primacy of human rights over trade agreements. In addition, the chapter discusses two instruments which have been developed to mitigate adverse effects of trade agreements on human rights, that is, human rights clauses in trade agreements and human rights impact assessments of trade agreements. Finally, the chapter analyses reform options which could mitigate negative effects of trade agreements on human rights: (a) reform options within the trade regime, that is, proposals for new trade agreements; and (b) elements of a potential legally binding instrument on business and human rights relating to trade agreements and policies.