Part III - Regional Approaches

10 Gender Approaches in Regional Trade Agreements and a Possible Gender Protocol under the African Continental Free Trade Area A Comparative Assessment

Katrin Kuhlmann

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10.1 Introduction

The legal basis exists for a deeper focus on gender through the African Continental Free Trade Area (AfCFTA).¹ The 2017 Joint Declaration on Trade and Women’s Economic Empowerment on the Occasion of the WTO Ministerial Conference in Buenos Aires (Declaration)² was heralded as a landmark initiative for putting gender on the trade agenda,³ and gender is also a strong focus of the African Union (AU) Agenda 2063.⁴ Although in legal terms these are soft law instruments without binding obligations, they set the stage for deeper work globally and under regional trade agreements (RTAs) such as the AfCFTA. These instruments also align with important human rights instruments, including the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),⁵ UN Sustainable Development Goals (UN SDGs), in particular, Goal 5 on Gender Equality,⁶ and the African Charter on Human and Peoples’ Rights Protocol on the Rights of Women in Africa (Maputo Protocol; also referred to as the AU Protocol on Women’s Rights).⁷

RTAs are increasingly incorporating gender priorities,⁸ sometimes in the form of more tangible commitments through gender-focused provisions and chapters.⁹ Not only is this a global trend, but it has strong roots in the African continent, where substantive gender commitments are included in obligations through Regional Economic Communities (RECs) and ‘gender-sensitive trade policy has … been a distinct feature’ for years.¹⁰ As of September 2022, the World Trade Organization (WTO) reported that out of 353 RTAs in force and notified to the WTO, 101 contain provisions on gender and women’s issues.¹¹ Among the recent RTAs that include gender provisions, several incorporate a separate gender chapter, such as the Chile–Uruguay, Canada–Chile, Argentina–Chile, Chile–Brazil, and Canada–Israel Free Trade Agreements (FTAs),¹² as well as the 2020 United Kingdom–Japan Comprehensive Economic Partnership Agreement.¹³ Some African RECs, such as the Common Market for Eastern and Southern Africa (COMESA) and Southern African Development Community (SADD), as well as the Canada–Israel FTA, notably subject gender provisions to dispute settlement, which must often follow an attempt to pursue amicable avenues for resolving disputes.¹⁴ While subjecting gender provisions to dispute settlement is a rather unusual feature among RTAs, it is likely that it is more cosmetic than compulsory.

Despite the proliferation of gender provisions and chapters, current approaches merely scratch the surface of what is possible. Most provisions on gender contain softer obligations and do not establish binding legal standards, which can be important for small enterprises and vulnerable communities. Further, gender provisions often fall short of enhancing equity and inclusion by not directly addressing the concrete challenges women face and the sectors in which they work. As gender chapters continue to evolve, they will likely be under increasing scrutiny regarding the depth of provisions, the degree to which they are gender responsive, and the extent to which they foster equitable and inclusive opportunities for women. This chapter will examine both current approaches and options for the future, with a particular focus on how trade rules could be designed to respond to the challenges that women traders, especially micro, small, and medium-sized enterprises (MSMEs) and small and medium-sized enterprises (SMEs), face in their day-to-day work.¹⁵

This assessment is critical in light of the announcement of a gender-related protocol under the AfCFTA,¹⁶ which is the world’s largest RTA in terms of member states and is an agreement that has the potential to reset the rules well beyond the African continent.¹⁷ Although the Protocol on Women and Youth in Trade under the AfCFTA is still taking shape, several provisions in the current AfCFTA provide a high-level glimpse into what may follow,¹⁸ and some of these are quite innovative in their design. Treaties establishing other African RECs contain gender provisions as well, including the East African Community (EAC),¹⁹ COMESA,²⁰ SADC,²¹ Economic Community of West African States (ECOWAS),²² and Economic Community of Central African States (ECCAS),²³ establishing a foundation on which to build.²⁴ Given some of the particular challenges facing women traders and entrepreneurs on the African continent,²⁵ including complex and inconsistent market rules and gaps in digital inclusion and access to finance, the AfCFTA provides a fresh opportunity to go beyond this start and address gender and trade in a meaningful way.

The sections below will examine RTA approaches on gender and trade to date, including the structure of RTA provisions on gender, the gender responsiveness of RTA provisions, and inclusive legal design approaches.²⁶ Together, these provide a comparative assessment of approaches, provisions, and legal design innovations (drawn from RTAs, WTO rules, hard and soft law, and domestic law) that could be used to address gender considerations in the context of inclusive development under the AfCFTA going forward.²⁷

The chapter unfolds as follows. Section 10.2 compares the approaches to assess trade and gender rules. Section 10.3 provides a contextual analysis of the options and innovations with respect to trade measures affecting women, access to finance, digital inclusion, and food security, under the AfCFTA and for future RTAs.

10.2 A Brief Comparison of Approaches to Assess Trade and Gender Rules

Although the practice and literature are still evolving on gender and trade, several approaches on how to assess gender and trade rules are relevant to the AfCFTA and other future RTAs. These include analysis of the structural nature of RTA provisions on gender, evaluation of the degree to which RTA provisions are gender responsive, and assessment of the equity and inclusivity dimension of gender and trade provisions. These different approaches intersect and are presented briefly below, and they all inform the contextual analysis in Section 10.3 focused on women’s needs in the market.

10.2.1 Structure of RTA Provisions on Gender

Structurally, the word ‘gender’ appears in RTAs in various forms (Table 10.1), including in agreements’ preambles and objectives (including, e.g., the Preamble to the AfCFTA); annexes; non-specific articles on related issues such as labour, agriculture, and intellectual property;²⁸ specific articles on gender; side agreements, which are often focused on related issues such as labour (e.g., Canada–Colombia and Canada–Costa Rica FTAs); and even stand-alone gender chapters (e.g., Chile–Uruguay FTA) in RTAs and protocols, such as the SADC Protocol on Gender and Development.²⁹ These structural aspects of gender and trade have been comprehensively assessed;³⁰ they inform how gender is incorporated into trade agreements, and they impact the degree and depth of commitments.

Table 10.1 Main structures of gender-related provisions

Structure of gender-related provisions	Number of RTAs
Main text of the RTA:	76
Preamble	12
Non-specific article(s) on gender	64
Specific article on gender	10
Specific chapter on gender	9
Annex(es)	17
Side document(s) to the RTA:	12
Side Letters	1
Joint statement(s)	1
Protocol(s)	2
Labour cooperation agreement	8
Post-RTA agreements/decisions on gender:	13
Declaration(s)	4
Decision(s)/resolution(s)/directive(s)	6
Agreement(s)	3

Source: José-Antonio Monteiro, ‘The Evolution of Gender-Related Provisions in Regional Trade Agreements’, (2021) World Trade Organization Staff Working Paper ERSD-2021-8, 14.

Within these structures, gender commitments tend to include common elements: ‘(i) affirmations of the importance of eliminating discrimination against women; (ii) recognition and adherence to other international agreements on gender; (iii) cooperation on gender issues (iv) institutional provisions including the establishment of committees for cooperation and exchange of information; and (v) soft committee-based dispute resolution mechanisms to amicably resolve differences’.³¹

10.2.2 Gender Responsiveness of RTA Provisions

Going beyond structure, gender responsiveness is an important consideration in assessing RTA approaches. Bahri has advanced an instrumental Gender-Responsiveness Scale based on a maturity framework (Figure 10.1) which categorizes RTA provisions based on their gender responsiveness into five groups: limited, evolving, acceptable, advanced, and optimizing.³² These benchmarks and levels allow for comparison across RTA provisions that go beyond their structure and begin to evaluate their impact.

Figure 10.1 Gender-responsiveness maturity framework.

Source: Amrita Bahri, ‘Measuring the Gender-Responsiveness of Free Trade Agreements: Using a Self-Evaluation Maturity Framework’ (2019) 14(2) Global Trade & Customs Journal 517–527.

Applying this framework to the AfCFTA, the AfCFTA contains Level I commitments in the Preamble (‘Recognising the importance of international security, democracy, human rights, gender equality, and the rule of law, for the development of international trade and economic cooperation’) and General Objectives (Article 3 (e) under the General Objectives contains the objective to ‘promote and attain sustainable and inclusive socio-economic development, gender equality and structural transformation of the State Parties’).³³ Even though the AfCFTA’s General Objectives contain a non-binding mention of gender equality, the inclusion of the language ‘promote and attain’ suggests a higher level of commitment than other general gender references.³⁴ Further, the language in the AfCFTA Preamble draws an explicit link between gender and ‘the development of international trade and economic cooperation’, implying that the AfCFTA as a whole should be interpreted in this context.³⁵

Notably, two of the AfCFTA’s protocols also contain gender-related provisions.³⁶ The AfCFTA Protocol on Trade in Services includes a reference to women in Article 27(2)(d) on Technical Assistance, Capacity Building, and Cooperation that could be considered a Level III commitment under Bahri’s scale (‘State Parties agree, where possible, to mobilise resources, in collaboration with development partners, and implement measures, in support of the domestic efforts of State Parties, with a view to, inter alia, … improving the export capacity of both formal and informal service suppliers, with particular attention to micro, small and medium size; women and youth service suppliers’).³⁷ The AfCFTA Protocol on the Free Movement of Persons contains a binding commitment with the use of mandatory language ‘shall’, stating that ‘States Parties shall not discriminate against nationals of another Member State entering, residing or established in their territory, on the basis of their … sex’.³⁸ This provision is particularly innovative, as it links non-discrimination with the free movement of persons and explicitly prohibits discrimination based on sex in this context.³⁹ The AfCFTA also includes a number of other provisions, including on special and differential treatment (S&DT), that could impact women as well (see Table 10.2).

Table 10.2 Inclusive legal and regulatory approach

Inclusive legal/regulatory dimension	Example RTA options
(1) Differentiation for vulnerable parties [special & differential treatment (S&DT)]a	• RTA provisions on S&DT related to goods and services (e.g., AfCFTA S&DT provisions) could incorporate a gender context. • Globally, the LDC Services Waiver could be used to provide preferential market access for services in ‘sectors employing predominantly women’.b • AfCFTA Protocol on Trade in Services references ‘formal and informal service suppliers, with particular attention to … women’.
(2) Flexibility in design and application of rules	• ‘Review and revise’ provisions in RTAs, such as the AfCFTA ‘rendezvous clause’,c which allow for agreements to be adapted as circumstances change. • Consultation provisions focused on vulnerable groups and women could inform use of flexibility to reassess and build out commitments subject to circumstances and needs.
(3) Sustainable development	• Sustainable development provisions could be tailored to gender priorities. • Green Box domestic support measures could be assessed, consistent with the WTO Agreement on Agriculture (AoA), based on how to address women’s needs,d particularly in the context of climate and food security, which could be part of a more comprehensive approach on food security and gender through RTAs.
(4) Equitye	• Minimum legal standards on women’s access to land, non-discrimination, equal pay for equal work, inheritance, and other areas of law related to women’s role in the economyf could enhance equity through RTAs and domestic law. • In addition to non-discrimination, building on the WTO Joint Initiative on Services Domestic Regulation, provisions could be incorporated into services schedules to guarantee gender-responsive financial services. • Permissible subsidies could be considered to provide treatment for ‘assistance to disadvantaged groups, such as women and ethnic minorities’.g • Provisions could be added on migration and anti-trafficking. • Digital inclusion provisions could be integrated that include gender, and gender could be noted in the context of data privacy (along with human rights, sexual orientation, transgender status, etc.). • AfCFTA and other RTAs could incorporate provisions on gender-responsive standards in line with the United Nations Economic Commission for Europe Declaration for Gender Responsive Standards and Standards Development.h
(5) Engagement and transparency	• Engagement provisions could be incorporated (Bahri Level 3) and linked with ‘review and revise’ RTA provisions to provide an avenue for addressing women’s needs on an ongoing basis, coupling engagement with ‘responsiveness’. • Transparency provisions could be tailored to women’s needs, drawing upon good practices and lessons learned. • Engagement should be broadly designed to include civil society and the private sector, including enterprises of all sizes and women entrepreneurs across sectors.
(6) Reduction of legal and regulatory gateways	• Measures to address regulatory hurdles facing women could be more systematically assessed and prioritized, with a focus on regulatory design and implementation to enhance women’s engagement in the market (e.g., focus on processes and procedures in trade facilitation, standards, sanitary and phytosanitary measures, streamlined business registration processes, etc.). • Mapping of specific processes that affect women could be done, with a focus on regulatory design and implementation to enhance women’s engagement in the market. • AfCFTA Simplified Trade Regime and Non-Tariff Barrier Reporting, Monitoring, and Eliminating Mechanism could be gender responsive.
(7) Implementation and impact	• Provisions could be integrated requiring gender assessment and gender impact review, along with focused engagement on implementation that actively involves women affected by trade rules.

Source: Katrin Kuhlmann, ‘Mapping Inclusive Law and Regulation: A Comparative Agenda for Trade and Development’ (2021) 2 African Journal of International Economic Law 48–87.

^a This most often takes the form of special and differential treatment, or special rights, for developing countries at the international law level. Kuhlmann, ‘Mapping Inclusive Law and Regulation’.

^b Acharya et al., ‘Trade and Women’, 346.

^c AfCFTA, Part. II Art. 7. See also Kuhlmann, ‘Mapping Inclusive Law and Regulation’, and Gammage and Momodu, ‘The Economic Empowerment of Women in Africa’.

^d Acharya et al., ‘Trade and Women’, 337.

^e Equity encompasses impartiality in law, with an emphasis on ensuring inclusivity for vulnerable groups addressing past injustices through law.

^f See ITC, ‘What Role for Women in International Trade?’ (2019) <https://intracen.org/news-and-events/news/what-role-for-women-in-international-trade> accessed 2 May 2023; Kuhlmann et al., ‘Reconceptualizing Free Trade Agreements’. At the WTO level, this could take the form of a plurilateral agreement on women in trade, which could ‘codify the elimination of discrimination against women in trade [by eliminating] domestic laws that perpetuate such discrimination and ensur[ing] compliance with the principles of equal access and opportunity for trade’. Laura Lane and Penny Nass, ‘Women in Trade Can Reinvigorate the WTO and Global Economy’ (CIGI 27 April 2020) 6 <www.cigionline.org/articles/women-trade-can-reinvigorate-wto-and-global-economy/> accessed 8 May 2022.

^g Acharya et al., ‘Trade and Women’, 342. They note that the WTO Agreement on Subsidies and Countervailing Measures (SCM Agreement) provides for significant policy space that could be used to empower women and disadvantaged groups.

^h See Lane and Nass, ‘Women in Trade Can Reinvigorate the WTO and Global Economy’.

Yet, despite these innovations, the AfCFTA’s provisions on gender merely scratch the surface,⁴⁰ and movement towards an AfCFTA Protocol on Women and Youth in Trade could propel the AfCFTA in the direction of more comprehensive gender commitments, perhaps even reaching Level V on Bahri’s scale. As the following section will argue, an AfCFTA protocol could innovate beyond existing Level V commitments and be tailored to address particular challenges facing women traders and entrepreneurs in the market.

10.2.3 Inclusive Legal Design Approach

In addition to the approaches discussed above, another important aspect of assessing RTA approaches revolves around equity and inclusion in legal design.⁴¹ To date, RTA provisions on gender, whether explicit or implicit, have focused primarily on cooperation and consultation and have not fully addressed more direct equity considerations.⁴²

Cooperation and consultations provisions are common in RTAs and are not limited to gender. They also appear in other RTA chapters, such as those on labour, the environment, SMEs/MSMEs, government procurement, agriculture, services, and intellectual property rights (IPRs).⁴³ These provisions fall within Level III in Bahri’s Gender-Responsiveness Scale and can be a useful tool when combined with other RTA commitments.

Assessing RTA design options through a lens of inclusion and equity requires a deeper dive into relevant legal design (encompassing a range of instruments, including treaties, soft law, domestic law and regulation, customary law, etc.), diverse legal and regulatory innovations, and the needs of vulnerable and marginalized stakeholders.⁴⁴ This is presented here based on an approach to ‘Inclusive Law and Regulation’ (Kuhlmann), applied to trade rules in a gender context (Table 10.2),⁴⁵ following an analytical framework that provides a basis to evaluate economic law and regulation (including RTAs) in the context of inclusive trade and development.⁴⁶ Additional options that fall within this analytical framework are presented in Section 10.3.

As Table 10.2 highlights, trade provisions and measures could be designed and applied based on a framework that fosters inclusion and equity. Additional examples that track these dimensions of inclusive law and regulation are presented in section 10.3.

Finally, and critically, there is also a political dimension to gender and trade. Despite the proliferation of gender provisions in trade instruments, gender and trade commitments are sometimes viewed with scepticism from the perspective of preserving policy flexibility (or ‘policy space’) and avoiding disguised protectionism.⁴⁷ These are important considerations and are approached here in three interconnected ways, recognizing that these issues are complex and multidimensional. First, states and regions need to consider the most appropriate way to use the legal instruments of international trade to meet particular gender and development needs. For this reason, the following section presents options for consideration and not prescriptive solutions. Second, as far as possible, any options for RTAs should be tracked with innovations in regional and domestic law, which can act as a proxy for supported principles and approaches. In this case, innovations in the design of African law at the international/regional and domestic levels are highlighted, bearing in mind that a more substantial review would be beneficial in the AfCFTA context. Finally, options presented in the following section are linked with actual challenges women face in sub-Saharan Africa, suggesting a balance between policy space and women’s needs and drawing a connection between RTA provisions and those they are meant to serve, ultimately linking macro-level trade agreements with micro-level challenges and opportunities. This final dimension is also worthy of greater study, as it is an important gap in trade law and trade agreements that should be more systematically addressed.⁴⁸

10.3 Contextual Analysis of Options and Innovations for the AfCFTA and Future RTAs

The preceding section presented a brief summary of three interconnected approaches to assess possible RTA provisions on gender and trade: a structural approach, a gender-responsive approach, and a design-focused approach based on inclusive law and regulation. This section draws from these approaches and frames RTA options for the AfCFTA in the context of challenges women face in the market. These challenges include issues related to the sectors in which women are engaged, including challenges related to work in both goods and services (and the high degree of work in the informal sector), non-tariff measures and regulatory hurdles, gaps in access to finance, lack of digital inclusion, and issues related to women’s role in the agricultural sector and food security.⁴⁹ Although current African RTAs (including the AfCFTA) do contain legal innovations, they do not fully recognize women’s particular needs or the roles that women hold in an economy, highlighting an important gap.⁵⁰ The AfCFTA could, however, innovate further through the new protocol and through a comprehensive, whole-agreement approach to address women’s needs.⁵¹

Important lessons and options can be drawn from the design of both gender-specific and broader provisions in existing RTAs, WTO rules, and African law. The legal dimension of gender and trade should be comprehensively assessed across legal instruments (Table 10.3), although a full legal assessment is beyond the scope of this chapter. Assessing the legal dimension of RTAs must, however, go beyond RTA text, structure, and enforcement and extend to other international legal instruments and national law as well, encompassing the ‘various laws and norms that influence gender roles and women’s opportunities and constraints within a particular country’ (or region) (see Table 10.3).⁵²

Table 10.3 Legal instruments related to gender and trade

Legal Instrument	Example
International instruments ‘relevant to gender equality and human rights’a	International treaties such as CEDAW, International Labour Organization (ILO) conventions, and the Maputo Protocol/AU Protocol on Women’s Rights; soft law, such as the UN SDGs (incorporated by reference in RTAs)
National constitutions	Constitution of Kenya (2010), for exampleb
National and subnational laws, regulations, policies, and other instruments ‘that benefit women and other disadvantaged groups’	(a) Non-discrimination/equal treatment laws; (b) Affirmative action and laws to address gender disparity and promote equality;c (c) Laws related to fair wages, food labelling, and health and safety, as well as non-tariff measures in other areas, for example trade facilitation provisions; (d) Procurement rules related to women; and (e) Laws and regulations facilitating development of sectors in which women work (including agriculture, manufacturing, and services), as well as digital regulation and provisions on digital inclusion.
‘Gaps or biases in the application or enforcement of laws that benefit women’	Labour laws, land titling, banking regulationd
‘Religious, traditional, or customary laws and practices’ (including ‘living law’)	Land tenure rules, inheritance rules

Source: Adapted from McGill, ‘Trade and Gender’, 37–38, with author’s additions, also referencing Christine Chinkin and Florance Butegwa, Gender Mainstreaming in Legal and Constitutional Affairs: A Reference Manual for Governments and Other Stakeholders (Commonwealth Secretariat 2001) and Mehra and Gammage, ‘Trends, Countertrends and Gaps’, R 26.

^a McGill, ‘Trade and Gender’, 37.

^b Constitution of Kenya, 2010 (Laws of Kenya), Arts. 27(8), 59(2), 60(1)(f), 81(b), 91(f), 172(2)(b), 175(c), 197(1), and 250(11). With respect to government procurement, see also Constitution of Kenya, 2010 (Laws of Kenya) Art. 227(1) and Public Procurement and Asset Disposal Act (Kenya), 2015, Section 53(6).

^c According to McGill, ‘Trade and Gender’, fn 93, such ‘special measures aimed at accelerating de facto equality between men and women’ are expressly authorized under CEDAW.’ See CEDAW, Art. 4.1.

^d Based on McGill, ‘Trade and Gender’, 38. McGill notes that ‘[f]acially neutral laws can … be applied in a discriminatory manner … [and] can also disadvantage women because of their more limited access to assets and employment opportunities’.

Domestic law is one of the most important sources of information on how RTA parties approach gender. Although states have innovative rules addressing gender, there are still critical gaps. According to the International Trade Centre, over 90 per cent of states have laws that limit women’s ability to engage in the market. These can take the form, for example, of rules and regulations that restrict women’s ownership of land, differentiated processes for business registration, and limitations on women’s participation in global trade.⁵³

In lieu of a comprehensive legal review, the WTO Trade Policy Review Mechanism (TPRM) provides important insight into how women’s empowerment is incorporated into the trade policies of WTO members.⁵⁴ Based on a sampling of TPR submissions, the majority (70 per cent) of members’ policies contain gender-responsive provisions.⁵⁵ These include (1) financial and non-financial incentives to the private sector and women-owned/led MSMEs and SMEs (30 per cent reported ‘trade policies that support women-owned/led companies’, including economic empowerment in the export sector; (2) ‘agriculture and fisheries policies that support women’s empowerment’ (15.5 per cent); and (3) ‘government procurement policies that support women’s empowerment’ (9 per cent).⁵⁶

Possible RTA options should further ‘be informed by an understanding of the social, economic and political context in which the relevant trade or investment activity is taking place, including the opportunities and constraints facing women and other disadvantaged groups’.⁵⁷ This aligns with an important aspect of gender mainstreaming, which calls for incorporating the ‘experience, knowledge, and interests of women … on the development agenda’,⁵⁸ as well as increasing focus on sectors that provide opportunities for women and ways in which to assist women-owned businesses to benefit from international trade and investment.⁵⁹

The sub-sections that follow discuss four priority areas: (a) women’s work in the goods and services sectors (including informal work) and trade measures affecting women (including impact of market rules on women); (b) access to finance; (c) digital inclusion; and (d) women’s responsibilities related to agriculture and food security, with relevant RTA options summarized. The options below track closely with the ‘inclusive law and regulation’ approach summarized in Table 10.2 and also integrate aspects of the gender-responsive approach in Figure 10.1. Although they relate mainly to the AfCFTA, they are applicable to other RTAs as well and also draw upon WTO disciplines as noted.⁶⁰

10.3.1 Women’s Work and Trade Measures Affecting Women

One of the most fundamental aspects of trade and gender centres around the nature of women’s work and engagement in the market. Women’s employment encompasses the goods and services sectors,⁶¹ and women have faced considerable disruptions in respect of both goods and services work due to the COVID-19 pandemic.⁶² A number of these challenges are due to the more precarious nature of women’s work, the lack of social safety nets, and women’s role in unpaid and informal work.⁶³ Tourism services, which are dominated by women, were also hit particularly hard during the pandemic.⁶⁴

Overall, women are increasingly involved in services, ranging from retail and financial services to tourism and hospitality, to health care,⁶⁵ including cross-border delivery of medical care that has been so critical during the COVID-19 pandemic. Women continue to play a strong role in manufacturing sectors as well, particularly export-driven manufacturing such as garments.⁶⁶

Women are disproportionately involved in the informal sector, and the United Nations (UN) estimates that 89 per cent of women in Africa work informally (as a percentage of full employment).⁶⁷ While informal work can sometimes be more flexible, it can also offer little security and room for advancement.⁶⁸ Within the informal sector, migrant women face some of the most significant challenges, as the pandemic has underscored.⁶⁹ The immense challenge of addressing trafficking of women and girls remains as well,⁷⁰ which is linked with trade and transport corridors and global value chains.

Women traders struggle with a number of regulatory roadblocks, or ‘regulatory gateways’,⁷¹ that limit their participation in the markets. These include domestic rules and regulations that relate to non-tariff measures (NTMs) in the form of standards, sanitary and phytosanitary (SPS) measures, and border measures, many of which are not gender responsive.⁷² In terms of border measures, although the WTO Trade Facilitation Agreement⁷³ (and African governments) have pressed for simplification of measures and encouraged digitalization of border procedures in order to reduce waiting times, women traders still face procedural challenges and safety issues at the border.⁷⁴ Women traders also often lack information on cross-border regulations and procedures,⁷⁵ putting them at a disadvantage vis-à-vis larger businesses and subjecting them to delays at border crossings.⁷⁶ In addition, women tend to lack access to transport, which impacts opportunities for small-scale women traders, particularly those dealing in perishable goods (this was exacerbated during the pandemic due to border closures).⁷⁷

A number of RTA options could be considered to address women’s work and trade, as elaborated upon below.

• For example, current RTAs tend to address women’s work more indirectly through provisions on labour, often including reference to the ILO Convention on Employment Discrimination.⁷⁸ While integrating ILO Conventions is important, this is just a start, and the AfCFTA and other future RTAs could incorporate both hard legal obligations and soft law instruments relevant to women’s work, such as UN SDG targets and indicators and business and human rights principles, enhancing the equity dimension of RTAs. Services commitments could be shaped in a gender context through horizontal commitments (spanning all services sectors) on non-discrimination,⁷⁹ strengthening the equity dimension of the AfCFTA. This would put the AfCFTA in a position to lead globally as well (aligning, for example, with the 2021 WTO Joint Initiative on Domestic Services Regulation that includes a provision to ensure that services measures ‘do not discriminate between men and women’).⁸⁰

• The AfCFTA already incorporates differentiated treatment with respect to both goods and services, which is a notable innovation that could be built upon in a gender context.⁸¹ In particular, the language in the AfCFTA Protocol on Trade in Services that mentions ‘formal and informal service suppliers, with particular attention to … women’,⁸² is unique among RTAs and could inspire more binding commitments under the new protocol.

• The AfCFTA could place special emphasis on women’s migration and trafficking in women and girls, innovating in these areas beyond current approaches. For example, the AfCFTA could include commitments in these important areas and incorporate other relevant instruments, such as the Ten Year Action Plan to Eradicate Child Labour, Forced Labour, Human Trafficking and Modern Slavery (2020–2030), adopted in February 2020 by African Heads of States and Government,⁸³ which aligns with AU Agenda 2063, and UN SDG Target 8.7. With respect to migration, the AfCFTA could include provisions on free movement of persons and give effect to aspects of the UN Global Compact for Safe, Orderly and Regular Migration, including provisions on mutual recognition of qualifications for migrant workers (Global Compact Objective 18) and other aspects related to human rights, trafficking, and decent work.⁸⁴

• Drawing upon lessons from the pandemic, the AfCFTA could also include provisions on essential services, such as procedural liberalizations, mutual recognition of professional qualifications, and use of green lanes for essential travellers, including service providers.⁸⁵

• The AfCFTA could incorporate gender-specific non-discrimination provisions related to NTMs, such as gender-specific commitments on licensing requirements and licensing procedures for goods and services, along with qualification requirements and procedures in services.⁸⁶

• The AfCFTA and other RTAs could incorporate provisions on gender-responsive standards, building upon the UNECE Declaration for Gender Responsive Standards and Standards Development.⁸⁷

• Provisions on addressing NTMs could be strengthened and made more gender responsive, building upon existing innovations to reduce regulatory gateways including the AfCFTA Simplified Trade Regime and Non-Tariff Barrier Reporting, Monitoring, and Eliminating Mechanism, with parallels to the NTM mechanisms in African RECs such as the EAC, ECOWAS, and the Tripartite Free Trade Area, as well as the Simplified Trade Regimes (STRs) in COMESA and the EAC, and the EAC ‘Simplified Guide for Micro and Small-Scale Cross-Border Traders and Service Providers within the EAC’.⁸⁸ Going forward, these mechanisms could increasingly be approached from a gender perspective,⁸⁹ with implementation focused, in particular, on reducing barriers for women traders and linked to ongoing consultations to ensure that they are widely known and used in practice.

• Transparency provisions could be tailored to increase information available to women traders and promote engagement and inclusiveness, expanding upon those included in Article X of the General Agreement on Tariffs and Trade (GATT),⁹⁰ as well as a number of RTAs.⁹¹ Some areas of focus could include using designated contact points or enquiry points and formal and informal dialogue structures,⁹² approached in a gender context.

• The AfCFTA could also build upon trade facilitation provisions and the STRs to address women’s needs,⁹³ focusing on important regulatory gateways. Customs fast track lanes and green lanes, the latter of which appear in some of Africa’s trade corridors and have proven to be helpful during the COVID-19 pandemic,⁹⁴ could help facilitate trade for women, including small-scale traders, as could de minimis provisions to exempt trade below a certain monetary threshold from duties and other requirements. Further, RTA provisions could address the challenges women face in accessing services, such as transport.

• The AfCFTA could include gender-specific references in the context of procurement in order to increase women’s participation in the market, consistent with the WTO Agreement on Government Procurement and AU proposal for a 40 per cent government procurement share for women,⁹⁵ as well as trends in African domestic law.⁹⁶ For example, Section 53 of Kenya’s recent Public Procurement and Asset Disposal Act (2015) requires that 30 per cent of government procurement be reserved for women.⁹⁷ Because implementation of such commitments has already been flagged as a challenge, the AfCFTA could include provisions on implementation, actively engaging women in tracking whether these commitments are applied in practice.

• Across all areas, the AfCFTA could also require collection of sex-disaggregated data and gender impact assessments of trade rules, consistent with articulated continental priorities and the WTO Declaration.⁹⁸ The degree to which AfCFTA provisions are binding and subject to dispute settlement will also be an overarching area for further consideration.

10.3.2 Access to Finance

Across the African continent, women face challenges in accessing affordable finance and credit,⁹⁹ which often acts as a factor limiting women’s work and trade (for example, lack of finance could keep women involved in the production of low value-added, unprocessed agriculture instead of processed products with a higher premium in regional and international markets) and opportunities for specialization, growth, and entrepreneurship.

Further, limitations on women’s ownership of land limits women’s access to credit and economic opportunities. Collateral requirements tend to favour land-based collateral, and in doing so disadvantage women due to restrictions on women’s landownership.¹⁰⁰ When combined with strict financial sector loan conditions, high interest rates,¹⁰¹ and lack of tailored financial services products for women, these restrictions can limit women to informal cross-border trade without sufficient opportunities to engage in the market.

A number of RTA options could be considered to address access to finance for women.

• For example, RTA parties could agree to horizontal commitments to reduce gender-based discrimination and improve women’s access to services (equity-enhancing provisions), as noted in Table 10.2 and Section 10.3.1.

• RTAs, including the AfCFTA, could enhance equity by introducing binding rules related to gender, as noted in Table 10.2, which are consistent with REC provisions in a number of contexts.¹⁰² These could include access to land, inheritance, and even expanded rules on collateral, including perhaps lease financing, acceptance of moveable property and contracts as collateral, and creation of an electronic collateral securities registry,¹⁰³ which could be done in a gender-responsive way. Binding rules could address other areas as well, such as non-discrimination and equal pay for equal work, which would reinforce the other options in this section and help ensure that RTAs are designed to support equity and inclusion. While these rules would address significant aspects of access to finance, they would be important all across women’s work and livelihood.

• RTA parties could agree to financial services commitments to encourage gender-responsive financial services products. These could include services sector commitments, both horizontal and sector specific. They could also emphasize important aspects such as mobile money, which has significant implications for women traders.¹⁰⁴

• Some African states, including Burundi, Egypt, Nigeria, and Zambia, have put in place policies that promote financial inclusion and gender-inclusive finance,¹⁰⁵ highlighting national-level support in this area and areas in which the AfCFTA could build out pan-African commitments. Training and building awareness on access to finance could be linked with the AfCFTA, including through ongoing initiatives, such as the African Development Bank’s Affirmative Finance Action for Women in Africa (AFAWA) programme and 50 Million African Women Speak Platform (50MAWS). Over time, the AfCFTA could become a platform for financial education and regulatory alignment.¹⁰⁶

10.3.3 Digital Inclusion

Addressing digital inclusion and inequality in digital trade will be significant across all aspects of women’s economic engagement.¹⁰⁷ Although women stand to gain significantly from digital trade, they are also particularly affected by the digital divide.¹⁰⁸ Information and Communication Technology (ICT) and financial services, including online payments services, could be better leveraged by women entrepreneurs and traders.¹⁰⁹ However, this also depends upon physical infrastructure and access to the internet.

Digital inclusion and opportunities in digital trade go hand in hand, and digital opportunities could be better harnessed to the benefit of women entrepreneurs and in furtherance of the UN SDGs,¹¹⁰ namely UN SDG 5 and Target 5.b: ‘Enhance the use of enabling technology, in particular ICT, to promote empowerment of women.’¹¹¹ Digital trade has already been highlighted as a priority issue for the next phase of the AfCFTA, with a digital trade protocol under negotiation,¹¹² which, in tandem with the gender and youth protocol, provides an opportunity to address digital inclusion and consider ways in which to tailor provisions to address women’s needs.

RTAs could address digital inclusion in a number of ways.

• Although few RTAs deal with digital inclusion, the Digital Economy Partnership Agreement (DEPA) among Chile, New Zealand, and Singapore (China and South Korea have also initiated the process of joining)¹¹³ includes specific language that emphasizes digital inclusion for indigenous communities, women, rural populations, and low socio-economic groups.¹¹⁴ The DEPA explicitly references gender in the context of digital inclusion: ‘To this end, the Parties shall cooperate on matters relating to digital inclusion, including participation of women, rural populations, low socio-economic groups and Indigenous Peoples.’¹¹⁵ The DEPA goes on to state that ‘cooperation may include’ a number of things, such as sharing experiences and good practices, ‘promoting inclusive and sustainable growth’, ‘addressing barriers in accessing digital economy opportunities’, and others.¹¹⁶ The cooperation aspect of the DEPA bears similarity to the cooperation provisions in existing gender and trade provisions and chapters, and this language provides a baseline upon which to build more performative obligations in the AfCFTA and future RTAs. The draft negotiated text for the Partnership Agreement between the European Union and the members of the Organisation of African, Caribbean and Pacific States (OACPS) also contains important provisions on reducing the digital divide and supporting digital entrepreneurship, particularly by women and youth.¹¹⁷

• African national policies and rules on financial digital inclusion, such as those in Mozambique, Madagascar, Tanzania, and Zambia,¹¹⁸ show national support for digital inclusion that could pave the way for broader strategies under the AfCFTA.

• Gender needs could also be explicitly taken into account in the context of data protection, and the UN Human Rights Council and the UN General Assembly have called upon UN members to ‘develop or maintain … measures … regarding the right to privacy in the digital age that may affect all individuals, including … women … and persons in vulnerable situations or marginalized groups’.¹¹⁹ Within African regional law, the ECOWAS data protection rules reference human rights and ‘fundamental liberties’ of the data holders,¹²⁰ which is also notable and could be even further tailored to gender. Some countries’ laws contain innovations in this area, including India’s Personal Data Protection Bill (2019), which, if passed into law, would treat data on health, caste or tribe, sexual orientation, and transgender status with heightened privacy protection.¹²¹

10.3.4 Agriculture and Food Security

African women play many roles in the agricultural sector – as primary producers of food and providers for their households, and also as traders and processors of agricultural products – creating strong links between agricultural trade and human rights, food security, health, livelihoods,¹²² and, of course, the SDGs.¹²³ In sub-Saharan Africa, women tend to be primarily responsible for household food security, in addition to their involvement in the production of both cash and subsistence crops.¹²⁴ Non-traditional agricultural exports, such as cut flowers and fruit and vegetables, present enhanced trade and work opportunities for women, and, in the case of non-traditional food crops, they can provide important benefits in terms of food security as well.¹²⁵ However, trade’s differential impact on women needs to be carefully considered, particularly in the agricultural sector where export-oriented agriculture can displace women-dominated subsistence farming.¹²⁶

Despite their prominent role in the agricultural sector, women continue to struggle with limited landownership and access rights and challenges with access to credit.¹²⁷. Women’s limited access to agricultural inputs, including seeds, technology, and extension services, impacts the ability to transition into higher value-added production and ultimately benefit from trade opportunities.¹²⁸

Women also tend to face particularly challenging regulatory hurdles in the agricultural sector, including compliance with standards and SPS measures, which can require significant investment, economies of scale, and technical capacity.¹²⁹ The WTO SPS Agreement, with which most RTAs largely align, including African RECs and the AfCFTA, contains important disciplines and an emphasis on capacity building and S&DT.¹³⁰

There are a number of RTA options for integrating agriculture and food security.

• For example, the AfCFTA could include provisions reaffirming the space for governments to put in place gender-responsive domestic support measures related to agriculture that are consistent with AoA ‘Green Box’ measures, such as training, research, extension, and advisory services.¹³¹ A gender lens could also be applied to agricultural input subsidies for resource-poor farmers in line with Article 6.2 of the AoA.¹³²

• The AfCFTA, building upon the precedent created through the RECs, is scheduled to address agricultural inputs in a more comprehensive way, creating another avenue for gender-responsive domestic support commitments and other provisions, including enhanced gender representation on inputs committees, that would complement the new protocol on gender.

• While RTAs have not comprehensively addressed food security, this is an area that could be pioneered under the AfCFTA in line with broader sustainable development considerations and the SDGs.¹³³ Food security could be addressed more comprehensively through detailed provisions on export restrictions, safeguards, tailored domestic support, climate adaptation, and links with agricultural inputs and other areas of regulation,¹³⁴ all of which could be aligned with WTO disciplines and other areas of international law and approached through a gender and equity lens.

• RTA measures to improve transparency and enhance capacity building could be strengthened, enhancing engagement and inclusion, with a particular focus on women’s role in the agricultural sector. This could work in tandem with tools for notifying and responding to SPS issues, such as the AfCFTA Simplified Trade Regime and Non-Tariff Barrier Reporting, Monitoring, and Eliminating Mechanism, and other programmes noted, in addition to the ePing Alert System of the UN Department of Economic and Social Affairs and ITC that improves access to SPS and TBT regulations, including through SMS alerts for small traders.¹³⁵ These programmes could all be tailored to women’s needs.

10.3.5 Overarching RTA Options

Finally, several RTA design options could address challenges across the four areas that are the focus of sections 10.3.1, 10.3.2, 10.3.3, and 10.3.4. These include cooperation and consultation provisions, which are already present in current RTAs (these align with Bahri’s Gender Responsiveness Levels III and IV and Kuhlmann’s Engagement Dimension of Inclusive Law and Regulation), and can be important across priority areas to promote enhanced skills, entrepreneurship, access to finance, and bridging the digital divide, among others.¹³⁶ Capacity-building provisions, while common in RTAs, could be enhanced to include the creation of gender committees and application of good practices and standards, as well as the collection and use of sex-disaggregated data.¹³⁷ However, while consultation, cooperation, and capacity-building provisions are important,¹³⁸ these mechanisms alone are insufficient to directly address women’s needs. These RTA options should be considered in combination with binding commitments (and softer commitments where appropriate) discussed in particular in Section 10.3.2 that would establish more performative obligations likely to lead to concrete action and provide a clearer channel for women to exercise rights.

RTAs could also address gender on a more systemic level, drawing from pan-African priorities and proposals at the global level, the latter of which includes a possible plurilateral agreement on trade and gender. Both multilateral and regional rules could incorporate expansion of general exceptions clauses modelled on GATT Article XX, which many RTAs, including the AfCFTA, contain.¹³⁹ While this could be helpful for incorporating gender and leveraging policy space, exceptions should not take the place of affirmative commitments on gender and trade. Finally, comprehensive gender strategies at the national and regional levels and use of gender-disaggregated data should be widespread practices. On the African continent, the UN has emphasized that gender mainstreaming needs to be integrated into the operationalization of the AfCFTA through countries’ national implementation strategies,¹⁴⁰ a proposal that would support many of the options discussed in this chapter.

10.4 Conclusion

As this chapter illustrates, gender-responsive rules can promote inclusive trade and development and generate significant benefits for women; however, the design and implementation of these rules will be critical. The AfCFTA already has a solid foundation on which a new gender-focused protocol could build, drawing from inclusive legal design options and innovations and broader lessons learned within and outside of the African continent to address real challenges in women’s work and trade, access to finance, digital inclusion, and agriculture and food security. The options highlighted in this chapter attempt to balance between policy discretion and establishment of binding commitments that would give greater certainty to women-led MSMEs and SMEs. The AfCFTA holds great promise, both in enhancing existing innovations in legal design and in ensuring that women’s voices are heard as new trade rules are developed and existing rules are applied. The options for inclusive law and regulation presented in this chapter, which could be incorporated into new RTA chapters and protocols or combined into an inclusive whole-of-agreement approach, provide an entry point for gender-responsive trade provisions and an opportunity for resetting the rules on gender and trade.

11 Leave No Woman Behind Gender and Trade Policy in CARICOM SIDS

Tonni Brodber and Jan Yves Remy ^*

11.1 Introduction

Trade policy remains a critical development strategy and is increasingly used to promote gender equality. However, within feminist economist circles, many efforts to engage in gender-responsive trade policies are considered merely decorative. This is because, while trade has increased opportunities for some women, many others find it difficult to participate in trade because of structural gender-based inequalities. Moreover, trade policies and strategies are too often gender-neutral, assuming that if the tide rises and trade opportunities increase, men and women will benefit equally.

As countries which are among the most open, trade-dependent, and vulnerable (both economically and geographically) in the world, the Caribbean region presents a fascinating case to explore the history of women in trade, the gender considerations within the existing trade framework, and the implications of these for sustainable development broadly, and gender equality specifically. Among the Americas, the Caribbean sub-region is unique because, unlike other case studies in North and South America featured in this book, this sub-region has not embraced gender mainstreaming in its trade negotiations and agreements. This is the case even though the region still encounters stubborn obstacles to gender equality which negatively impact women’s economic empowerment.

Using the Caribbean Community (CARICOM) – a sub-grouping of fifteen Caribbean countries that aim towards economic and social cooperation and integration – as a case study, this chapter assesses the impact of CARICOM’s current trade policies on women, considers whether and how gender is mainstreamed in CARICOM trade and development policy, and briefly concludes with recommendations on how gender can be better integrated into CARICOM trade policy.

The chapter is organized as follows: Section 11.2 begins by framing the gender and trade issue by providing a snapshot of CARICOM’s trade environment and women’s participation in trade and the economy. In Section 11.3, we assess CARICOM’s approach to gender equality and women’s economic empowerment, including the extent to which gender has been mainstreamed in CARICOM’s trade policy and negotiations. We argue that CARICOM Member States must begin to use trade policy to deliver on the promises enshrined under instruments such as the UN Sustainable Development Goals (SDGs). Finally, Section 11.4 concludes with some recommendations for achieving gender-responsive and gender-transformative trade policy to spur gender equality and sustainable development in the region.

11.2 Background to Women’s Participation in CARICOM Trade

11.2.1 CARICOM Trade Profile

The group of countries of the CARICOM¹ comprises small island developing states (SIDS)² which geographically surround the Caribbean Sea. As they are among the most trade-dependent, vulnerable, and open economies of the world, trade constitutes a major cornerstone of their economies, critical to their economic growth and development. For the CARICOM region, two sets of international obligations dominate the trade agenda: those arising under their membership of CARICOM, established in 1973 and revised in 2001, whose aim is to integrate their economies towards a single market and economy through a policy of open regionalism; and those arising from membership of the World Trade Organization (WTO),³ which binds them to a neo-liberal agenda that seeks to liberalize multilateral trade through the gradual dismantling of barriers in the trade of goods and services. Beyond these obligations, CARICOM has also concluded formal trading arrangements with other countries, ranging from partial scope agreements to free trade agreements (FTAs).⁴

Extra-regional trade is dominated by relations with traditional trade partners such as the United States, the United Kingdom, the European Union (EU), Canada, and, increasingly, China.⁵ The region is also a net foreign direct investment (FDI) importer, recording an estimated USD 2,794 million in FDI inflows in 2019 compared to USD 763 million in FDI outflows.⁶ Intra-regional trade is poor compared to other regional groupings and accounted for 12.5 per cent of CARICOM’s total exports in 2016.⁷

Although most countries in the region have evolved out of agriculture-based economies,⁸ today, most CARICOM economies rely on the services sector. Services account for about 60 per cent of gross domestic product (GDP), with tradable services focused predominantly on the tourism and financial services sectors. According to some estimates, CARICOM service exports in 2018 amounted to USD 14.36 billion, of which 80 per cent or USD 11.55 billion was from travel services.⁹ However, countries such as Belize, Guyana, Suriname, and Trinidad and Tobago also depend on the oil and gas and mining sectors. Also due to their larger land masses, such countries depend on agriculture. For the majority of CARICOM countries where agricultural export trade remains stagnant, imports account for 80 per cent of food in the region, and the food import bill was valued in excess of USD 5 billion in 2019.¹⁰ Manufacturing for export remains a small proportion of the traded sectors, although energy-rich Trinidad and Tobago is something of an outlier for the region, with manufacturing accounting for 19 per cent of GDP.¹¹

CARICOM’s trade performance over the past four decades has declined or stagnated, and it is generally considered one of the least competitive regions in the world. Intra-regional CARICOM trade, predominantly in merchandise, amounted to 2 per cent of GDP in the mid-1980s, 4 per cent of GDP in the 1990s, and then plateaued in the 2000s. Additionally, the region’s most prominent service industry, tourism, records a mere 5 to 10 per cent receipts from intra-regional tourism. This trade performance compares poorly with that of regions such as the EU, with trade amounting to 13 to 20 per cent of GDP.¹² The region’s susceptibility to natural disasters as well as its chronic indebtedness means that governments are constantly struggling to meet public expenditure on basic social systems like health and education, which impacts marginalized and low-income groups. Most recently, the economic shutdowns and global supply disruptions occasioned by the COVID-19 pandemic have also wreaked havoc on fragile economies, and according to the UN World Travel Organization (UN WTO), the impact of the COVID-19 pandemic resulted in a 71 per cent decline in international arrivals globally by the end of 2020.¹³ In comparison, the Caribbean recorded a 60 per cent decline in tourist arrivals and 60 per cent reduction in receipts from tourism.¹⁴

CARICOM’s economic and climatic vulnerabilities have serious repercussions for vulnerable groups, especially women. To paraphrase the UN Women COVID-19 Impact Summary Report, these intersecting vulnerabilities mean women are more exposed than men to negative shocks like COVID-19.¹⁵

11.2.2 A Snapshot of CARICOM Women’s Participation in Trade

The Caribbean trade liberalization policy has not been sensitive to the differentiated impact on men and women and has failed to take into account the historical and current profile of women as producers, traders, and consumers. Although statistics are hard to come by, women in the region were traditionally involved in agricultural production, especially during and after the colonial period.¹⁶ For instance, in many islands of the Eastern Caribbean, when banana production shifted from plantations to smaller scale farms, it was women who managed these smaller holdings while caring for families. The loss of preferential trading arrangements therefore resulted in a significant decline in the women’s livelihoods, with a 1999 study by Caribbean Association Feminist Research and Action (CAFRA) confirming that the living conditions of rural women in the Eastern Caribbean had worsened over the previous five years because of the decline in banana prices.¹⁷ Since the 1990s, most women in smallholdings participate in intra-regional trade, focusing on products such as onions and other cash crops. Anecdotal evidence indicates that this has impacted food security and nutrition on many islands, where women’s subsistence farming has declined, and women often rely on cheaper processed imports to feed their families.

Another feature of women’s participation in trade-related sectors across CARICOM has been their employment in Special Economic Zones (SEZs) and Exclusive Economic Zones (EEZs), especially in Jamaica in the 1980s and 1990s, as well as in Trinidad and Tobago and Haiti.¹⁸ Overall, these sectors did not result in sustainable economic growth or empowerment for women, as companies exploited low wages without improving skill sets. In Jamaica, for example, with the closing of the EEZs, 40,000 people, mostly women, were left without employment. The tourism sector effectively absorbed many of these women and tourism has therefore served as a social safety net of a sort for employment and Caribbean exports, generally benefiting women in the lower socio-economic classes.¹⁹

A consequence of the demise of agriculture was an expansion in exportable services from the region since the beginning in the 1990s, a sector which is predominantly run by women today. Service exports of CARICOM Member States totalled USD 14.36 billion in 2018,²⁰ and an estimated 87 per cent of employed women in Caribbean small states are involved in the services industry.²¹ While difficult to measure in Caribbean SIDS, as noted in Section 11.2.1, the main sources of services exported in the Caribbean are from tourism and related sectors, more specifically travel.²² Travel comprised 80 per cent of CARICOM’s total service exports in 2018,²³ with the largest regional service exporters being the Dominican Republic, Trinidad and Tobago, the Bahamas, Jamaica, and Barbados.²⁴ Women continue to occupy lower paid positions in that sector²⁵ and are particularly susceptible to external shocks. For instance, according to one study by the Economic Commission for Latin America and the Caribbean,²⁶ on account of COVID-19, the first half of 2020 saw regional exports of services fall in value terms by 30 per cent, explained mainly by the halt in tourism from April 2020 onward, which resulted in a 53 per cent decrease in income on the region’s travel account. The situation is particularly serious for Caribbean women, 17 per cent of who were employed in the tourism sector pre-pandemic, compared to 9.7 per cent of men.²⁷

Other sectors with export potential in the region, including agri-business, continue to be dominated by men. While there is some data that women-owned micro, small and medium enterprises (MSMEs) are increasingly creating a niche for themselves as entrepreneurs in small community-based or national markets, there are some worrying trends. As of 2015, only 8 per cent of women in the Caribbean were considered entrepreneurs, in comparison to 19 per cent of men. Most women entrepreneurs are managers of themselves only and are located within low growth sectors because they are predominantly in the hospitality sectors of restaurants, hotels, and retail. This can limit their ability to engage effectively in exports as they are outcompeted by larger and more agile firms producing cheaper products. Additionally, very few female entrepreneurs have been able to engage effectively in exports.²⁸ Some studies note that women do not have as much access to financing as men entrepreneurs do, one of the factors which is responsible for the slow growth of female entrepreneurs’ enterprises.²⁹ For instance, it is estimated that angel investors, seed capital, and venture capital funds are available to 1 per cent of female entrepreneurs in comparison to 7 per cent of their male counterparts.³⁰ Recent anecdotal and empirical data has also demonstrated that many women entrepreneurs do not necessarily enter entrepreneurship because of their love for entrepreneurial endeavours, but rather out of necessity – when they no longer have steady employment and create a business to secure a livelihood for themselves and their families. Enterprise Surveys showed that 32 per cent of women started businesses due to a lack of employment opportunities.³¹ Other women enter entrepreneurship for the flexibility it affords them to manage their care responsibilities, not because of market signals or because of a desire to grow their businesses and take on additional risk.³²

A final feature of women’s participation in the labour market is its informality. Most women-owned businesses are not registered and such businesses constitute approximately 58.7 per cent of women’s total employment in the region.³³ Informal employment refers to income-generating activities occurring outside of the formal and normative regulatory framework of the state (i.e., not formally registered, operating outside labour laws and regulations, often not paying income taxes, and often not contributing to, or covered by, the state’s formal social protection framework). Common informal jobs include domestic workers, vendors, ‘casual’ labourers, construction workers, and hospitality staff. Operating outside of the state’s social safety net, including labour regulations (such as protection from unfair dismissal) and social protection, informal workers are more vulnerable to economic precarity and instability.

For many women managing households on their own, informal care work has not only been integral to them and their families’ livelihoods, but to Caribbean economies as a whole. Efforts to support the transition from women entrepreneurs in the informal sector to the formal sector have not been successful. Some reports indicate that women entrepreneurs in the formal economy prefer the autonomy of the informal space – for example, they can set their own working hours. Also, research from some countries demonstrates that there can be low trust in the taxes and regulatory burden of formalization³⁴ translating into the benefits of a well-resourced contributory social protection system for them individually.³⁵

Finally, women in the Caribbean experience trade policy as consumers and heads of single-parent households. In Jamaica, 37 per cent of children were reported as having no father figure in the home; and in 2018, 45.6 per cent of households were women-led.³⁶ In Barbados, 56 per cent of households with a young person are headed by a woman, compared to 44 per cent headed by a man.³⁷ In Trinidad and Tobago, 32 per cent of households are headed by women.³⁸ Women’s roles as primary caregivers means they are often responsible for food, security, and nutrition.³⁹ With declining economic fortunes in many of the islands, cheaper imported food – often less nutritious than local produce – has provided the means for many women to feed their families. This has contributed to the region’s high import food bill and translates into limited expenditure and fiscal space for governments to support robust social programmes such as subsidized care, health, and education that impact women and their families.

It is therefore evident that women in the labour force are not effectively participating in CARICOM’s trade, or benefiting from the enhanced economic opportunities that access to external markets provide. Incentivizing and supporting women to participate in trade presents an opportunity to enhance women’s economic empowerment, and leverage women’s productive capabilities for regional development.

11.3 The Gender and Trade Agendas in CARICOM

11.3.1 Gender Equality and Economic Empowerment in CARICOM

CARICOM countries have made significant gains in achieving some of the indicators of gender equality. For example, most gender-based discriminatory legislation has been removed;⁴⁰ there are equal numbers of girls and boys in education; and women tend to be more likely to pursue tertiary education than men. Nonetheless, stubborn obstacles to gender equality remain which impact women’s economic empowerment. These include high levels of gender-based violence,⁴¹ poor integration of women’s leadership in organizations, unemployment⁴² and inadequate access to resources, lack of formal recognition of unpaid care work burdens,⁴³ lack of state-supported measures to address the burden of unpaid care such as robust parental leave policies or subsidized child-care,⁴⁴ and low numbers of women entrepreneurs.⁴⁵

The women’s rights agenda in CARICOM has gone through a number of movements. Indeed, the early feminist agenda in the region was framed within the broader agenda of international platforms for voting rights and women’s rights to public spheres within the context of independence and anti-racist movements for action ‘adapted to national and regional priorities’.⁴⁶ The international community, including independent Caribbean states, recognized the need for a convention focused on the need to address women’s substantive right to equality and, in 1979, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)⁴⁷ was signed into force. All CARICOM SIDS have ratified the CEDAW, which is a legally binding treaty.

Between the 1960s and 1990s, women’s inequalities were addressed through efforts to integrate women into national economies and create equal opportunities for women. This was done successively under the ‘Women in Development’ approach, followed by a ‘Women and Development’ approach, and thereafter a ‘Gender and Development’ approach.⁴⁸ The Women in Development approach prominent in the 1970s represents the ground-breaking recognition that women should be economically empowered through small-scale projects as their productive contributions support economic growth and development. While pivotal, this approach ignored the structural barriers that contributed to gender inequalities and therefore ushered in the Women and Development approach in the 1980s which better addressed these structural inequalities. Women and Development emphasized women’s role in the development process more broadly, along with the intersectionality of vulnerabilities along the lines of class, ethnicity, gender, etc. The Gender and Development approach that followed in the 1990s shifted this thinking from being a women’s issue to a gender issue, deconstructing gender-neutral development discourse and supporting a ‘gender lens’ and gender mainstreaming across all social, economic, and political work.

The Caribbean region participated in these movements, through the CAFRA – a non-governmental feminist umbrella organization advocating for gender equality and women’s rights across the region. CAFRA, the Women and Development Unit (WAND), established in August 1978 in the context of the UN Decade for Women and Development Alternatives with Women for a New Era (DAWN), and a network of feminist scholars, researchers, and activists from the Global South working for economic and gender justice and sustainable and democratic development established in 1984, were significant in galvanizing CARICOM’s participation in the Fourth World Conference on Women in Beijing in 1995, where countries agreed to twelve critical areas of concern under the Beijing Platform for Action (BPfA), one of which involved Women and the Economy.⁴⁹

CAFRA’s influence has waned somewhat since the 1980s and 1990s, and today the women’s movement in CARICOM is not as cohesive as it once was. Many feminist activists now operate as individual activists or within informal groups, most focusing on gender-based violence prevention and response. The lack of funding to feminist and women’s organizations has often been cited for the decline.⁵⁰ However, since 2018 there has been a significant increase in funding for feminist and women-led organizations, through the Government of Canada-supported Women’s Voice and Leadership Program⁵¹ and the European Union and United Nations Spotlight Initiative.⁵² However, despite the increased funding to feminist and women’s organizations generally, the civil society space has tended to focus more on issues such as gender-based violence, women’s leadership, and political participation, while women’s economic empowerment has been less prioritized by these organisations.

Today, beyond a general rejection of trade liberalization, the specifics regarding the gender and trade agenda amongst the network of Caribbean women’s and gender equality organizations are focused on creating an enabling environment for women to equitably engage in trade. This includes the promotion of gender-responsive social protection measures such as subsidized childcare, paid parental leave, and equal pay for equal work. The private sector and international community have engaged in supporting women-owned businesses through skills strengthening and increased access to financing, as well as networking opportunities. The Compete Caribbean project by the Inter-American Development Bank (IADB) and the WeEmpower project by the Caribbean Export Development Agency are examples of this approach aimed at strengthening women-owned businesses’ capacities for trade. Similarly, the SheTrades Outlook policy tool developed by the International Trade Centre (ITC) captures new trade and gender data to better inform policy and programme formulation to support women in business. Through this platform, countries can identify data gaps and areas for potential reform and discover good practices.⁵³ Coverage for SheTrades Outlook includes several Caribbean countries, such as Barbados, Guyana, Jamaica, St. Lucia, St. Vincent and the Grenadines, and Trinidad and Tobago. Trinidad and Tobago was the first country in the Caribbean to officially launch an ITC SheTrades Hub in October 2020.⁵⁴ The platform offers opportunities for Trinidad and Tobago’s women-owned MSMEs to access global supply chains and trade which is in line with Trinidad’s trade policy’s commitment to remove obstacles to the full participation of women in the development of trade.

11.4 Gender Mainstreaming in CARICOM Trade Policy and Negotiations

Although feminist economists have for a long time advocated for more gender-responsive approaches to trade,⁵⁵ gender has not traditionally been part of the official trade agenda at the WTO or in other trade-related fora. But the situation is changing. Since the Beijing Declaration and Platform for Action in 1995, the 2015 Addis Ababa Action Agenda – an integral part of the 2030 Sustainable Development Agenda – has explicitly made the connection between gender and international trade. In 2016, at the XIV United Nations Conference on Trade and Development (UNCTAD) Conference held in Nairobi, Kenya, UNCTAD members called for a continuation of work on the link between gender equality and trade, and most recently at the XV UNCTAD Conference in Barbados, an inaugural Gender and Development Conference was hosted.⁵⁶ Although there is no formal committee on gender and trade at the WTO, some progress has been made in getting WTO members to begin discussion on the topic. At the 2017 WTO Ministerial Conference in Buenos Aires, 118 WTO members signed a Joint Declaration on Trade and Women’s Economic Empowerment,⁵⁷ which promotes the collection and analysis of gender-disaggregated data,⁵⁸ sharing of country experiences and good practices,⁵⁹ and promotion of collaboration to raise the profile of the link between trade and gender. In anticipation of the 12th Ministerial Conference in Geneva, WTO members prepared a Joint Ministerial Declaration on the Advancement of Gender Equality and Women’s Economic Empowerment within Trade,⁶⁰ in which they agreed to continue improving the collection of gender-segregated data,⁶¹ use research to inform trade policies,⁶² explore women’s empowerment issues,⁶³ promote collaboration between gender and trade,⁶⁴ and discuss the impact of COVID-19 on women. However, this declaration was never adopted.

The global recognition that gender equality is an indispensable component of the achievement of the UN SDGs – Goal 5 is to ‘achieve gender equality and empower all women and girls’ – has no doubt also contributed to the mainstreaming of gender in international economic policy, including trade policy. While there is no specific reference to trade within SDG 5, a closer look at the targets and indicators associated with it illustrate how progressive gender-related policies can lead to economic empowerment, increase their outcomes as workers and owners, and increase access to technology, all of which are linked to topics of international trade. This particularly stands for the most vulnerable, including those who are subjects of economic exploitation, unpaid care workers, and beneficiaries of public service expenditure.⁶⁵

Despite the changes at the international levels, not all countries have adapted and streamlined gender policy into the development and trade agendas. Some countries, such as Sweden and Canada, explicitly acknowledge the role trade policy has in contributing to gender equality and have led the way through far-reaching agreements. For example, Canada’s FTAs with Israel and Chile reaffirm its gender-related obligations under international agreements such as those recommended the CEDAW.⁶⁶ Additionally, Canada has committed to adopt policies, regulations, and best practices for gender equality nationally.⁶⁷ Sweden has created a national policy space which prioritizes gender mainstreaming and allows better articulation of the country’s negotiating position on gender-related matters. For instance, Sweden has since 1994 required that all national statistics be disaggregated by sex, budgeting processes are informed by gender equality agendas, public sector agencies and officials are trained in gender equality, and various anti-discriminatory legislations are enacted.⁶⁸ Within CARICOM, by comparison, much work remains to be done in better streamlining gender into trade agreements and sustainable development policies, and in particular addressing some of the gender inequalities that persist in the region.

According to a 2020 study conducted by the UN ECLAC on the status of gender mainstreaming in the sustainable development policy frameworks of twenty-nine Caribbean States, as of 2019 the most frequent themes addressed in the national development plans have been: quality education (SDG 4), decent work and economic growth (SDG 8), sustainable cities and communities (SDG 11), climate action and peace (SDG 13), and peace, justice, and strong institutions (SDG 19). One of the weakest linkages to the SDG goals, however, includes gender equality (SDG 5).⁶⁹ Out of the twenty-nine Caribbean Member States reviewed, eight have national development plans that mainstream gender. These states include Antigua and Barbuda, Bahamas, Belize, Dominica, Dominican Republic, Jamaica, St. Vincent and the Grenadines, and Trinidad and Tobago. However, as the UN ECLAC study demonstrates, the measures in the country’s national development plans are limited to the areas of gender-based violence, education, and employment, and are not integrated in ‘transformational ways’, especially when addressing cross-cutting issues.⁷⁰ As highlighted by UN ECLAC, the trade sector especially continues to remain virtually gender-neutral despite its widely accepted gender dimensions. The study also highlighted the fact that eleven Caribbean states have existing gender equality policies or related action plans. Upon further analysis, out of these eleven states, gender equality policies or related action plans in Jamaica, Trinidad and Tobago, and especially Grenada have addressed trade in different ways. However, oftentimes these policies do not reference each other; nor are there robust monitoring and evaluation frameworks to assess the success of policy implementation.

CARICOM’s incorporation of gender provisions into its trade agreements has also been underwhelming. Although some CARICOM Member States – Barbados, Dominica, Grenada, Guyana, Haiti, Jamaica, St. Kitts and Nevis, and St. Vincent and the Grenadines – have signed up to the 2017 Buenos Aires Declaration, as a region it is among the lowest performing in terms of the incorporation of gender provisions.

A 2021 Study by UN Women considered CARICOM’s incorporation of gender in its trade agreements by reviewing all six free trade and partial scope agreements which are currently in force.⁷¹ The ‘gender-inclusive lens’ was applied to the agreements, using the ITC’s gender-responsive trade agreement survey tool⁷² to determine the extent to which the agreements’ texts were sensitive to informed or committed to gender equality. CARICOM’s FTAs were analysed and found to be ‘completely or close to gender-blind or gender-neutral’ because they failed to mainstream gender concerns.⁷³ The reasons given by the authors of the UN Women study for the poor gender mainstreaming in trade agreements included that: trade officials were unsure of the protocols they needed to follow to allow their negotiations to advocate for gender-responsive trade agreements; there are limited meaningful consultations with national or regional offices responsible for gender-related matters, which denies the opportunity to adequately understand as well as subsequently prioritize gender concerns in trade negotiations; and insufficient allocation of resources to properly monitor and evaluate the implementation of trade agreements and their provisions which may have gender implications.⁷⁴

The most expansive reference in existing agreements, the EU–CARIFORUM Economic Partnership Agreement⁷⁵ (also UK–CEPA), includes two gender equality considerations in the agreement’s text. One such commitment is in Article 191, under which the parties reaffirm their commitment to the internationally recognized core labour standards, as defined by the relevant International Labour Organization (ILO) Conventions, in particular under the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up (1998). The parties have also committed to promote the development of international trade in a way that is conducive to full and productive employment and decent work for all, including men, women, and young people. Another commitment is found in Article 5, wherein parties have undertaken to review the operation of the Agreement to ensure that it is implemented for the benefit of men as well as women. While the commitment for impact assessment might be considered a best practice provision, its utility is undervalued by the fact that the parties do not commit to any affirmative action in this respect, in the form of either cooperation or a binding commitment. They also do not identify how this review or impact assessment may be carried out and whether it would be an ex ante or ex post assessment.⁷⁶

A promising prospect for a more gender-responsive trade agreement has been provided in the recently concluded post-Cotonou EU/African–Caribbean–Pacific Partnership Agreement.⁷⁷ While not formally a trade agreement, it does provide the basis for future economic relations and a partnership between the EU and Caribbean. The pact does include more specific gender provisions than any of the existing agreements to which CARICOM states are party. The preamble, for instance, reaffirms that gender equality and empowerment of women and girls are essential to achieving inclusive and sustainable development. Moreover, a specific provision (Article 10) addresses gender equality and in the Caribbean Protocol, Article 48 specifically ‘reinforces women’s economic rights, including by facilitating their access to economic opportunities, financial services, enabling technology, employment and the control and use of land and other productive assets’.

Beyond CARICOM, other Caribbean states have demonstrated more expansive approaches to trade and gender. For instance, in the EU-Overseas Countries and Territories (OCT),⁷⁸ the parties have committed to non-discrimination based on sex as one of the main objectives of the agreement. In United States–Dominican Republic–Central America FTA (CAFTA-DR),⁷⁹ Parties have reserved a right to craft government procurement schemes that may be favourable for certain groups, including women.⁸⁰ Given that public procurement accounts for around one-fifth of global GDP⁸¹ and the relative underrepresentation of women entrepreneurs,⁸² it is a positive development that CARICOM states could well embrace.

At the institutional level, some work has been done by CARICOM to advance gender concerns, but this has focused on social and health-related themes and addressing sexual violence against women and girls. In particular, the 2005 CARICOM Plan of Action⁸³ for gender equity and equality has provided a regional framework to guide the process of gender mainstreaming in priority areas such as education with a focus on building human capital, and health with a focus on HIV/AIDS and poverty. The economy including trade was included as the third priority area, but it is unclear what has emerged from that effort.

More recently, as of February 2019, consultations have been underway on a draft CARICOM Regional Gender Equality Strategy with priority areas identified including equality and social inclusion, freedom from violence, access to health services, access to education, good governance, and economic empowerment.⁸⁴ At face value, it is unclear whether the link between trade and gender has been considered or will be addressed in this strategy. The draft strategy is being refined and should be finalized in 2023. This presents an opportunity to incorporate trade and gender considerations for the region. CARICOM markets especially should be explored for opportunities that would enable businesses owned by women to expand their operations.

11.5 Final Thoughts

In spite of the multiple vulnerabilities they face as SIDS, CARICOM states are among the most open and trade dependent in the world. Trade is therefore an indispensable tool for economic growth and development, which must be inclusive, sustainable, and leave no group behind, including women and girls. Despite increasing recognition globally of the interlinkages between trade and gender, and the role that trade can play in advancing women’s empowerment, CARICOM Member States have not demonstrated a clear understanding of the differentiated impact on women who encounter the trade space as producers, traders, and consumers; nor have they sufficiently mainstreamed gender provisions into their trade agreements to date.

Trade represents a fertile, albeit unrealized, opportunity for CARICOM Member States to reduce and overcome these structural inequalities that stifle the economic, social, and cultural advancement of women and gender equality. If negotiated with a gender lens, trade can translate into more job opportunities, better business connections, enhanced market access, and fewer barriers to access finances and other productive resources for women, all of which present obstacles to women’s advancement in CARICOM states.

The authors recommend a few simple but essential policies for the attention of gender and trade officials in CARICOM. First, reliable sex-disaggregated data must be collected so that a better understanding can be gained of how trade policies impact women and more targeted interventions can be made. Efforts by UN Women and CARICOM to create CARICOM Gender Equality Indicators, which are aligned to the SDGs, has been a good start. Caribbean SIDS should ensure the effective collection of this data, especially as it is related to women’s economic engagement. A better understanding of time use, as measured by SDG 5.4.1 (Proportion of time spent on unpaid domestic and care work), will allow governments to reflect on the contribution of the unpaid care economy to GDP and inform equitable policies for women to engage more fully in the formal economy and trade sectors.

Another key recommendation is to break the silos between trade policy and gender, and mainstream gender into all significant national development strategies. In spite of the enormous impact of trade policy on women – whether as importers, producers, entrepreneurs, or consumers – consultations with gender departments, women’s organizations and community groups have not been prioritized in the development of trade policy. Gender indicators should be developed for all trade policies, and trade negotiation teams should include gender and socio-economic specialists. Moreover, SIDS should ensure all that trade policy is inclusive of tourism policies, and that both are fully gender responsive. Gender policies should not be siloed from national development strategies.

Finally, CARICOM should utilize existing mechanisms in trade agreements to revisit and renegotiate provisions so that they focus on gender inequalities that persist in CARICOM, including women’s lack of participation in commercial and entrepreneurial sectors, and lack of access to capital and finance. Trade agreements should explicitly reference provisions such as capacity development for women-owned businesses, as well as temporary special measures for export by women-owned businesses. Priority in the region should be on negotiating outcomes that focus on enhancing the participation of women in newer areas that hold promise, such as in the ecommerce and renewable energy sectors.

12 South America’s Leadership in Gender Mainstreaming in Trade Agreements

Javiera Cáceres Bustamante and Felipe Muñoz Navia

12.1 Introduction

There is a growing awareness amongst academics, government officials, and experts from international and non-governmental organizations (NGOs) that economic policies impact men and women differently. The difference is probably the result of social systems where different kinds of inequalities exist. In these systems, social relational contexts are fundamental as they shape a gender regime which conditions sex segregation in jobs, division of labour, and gender differences in social positions in authority, among others.¹ Therefore, it has been recognized that mainstreaming gender perspectives into policymaking is crucial to ensure women’s economic autonomy and has a positive effect on development.² In this context, gender issues have been included in international trade policy agendas, acknowledging that countries with higher levels of political and economic participation by women are closer to achieving gender equality as well as a higher level of global competitiveness.³

New preferential trade agreements (PTAs) include gender considerations because: more women are part of policymaking than before; an increasing number of women own or manage export firms and trade in international markets; advocacy campaigns are raising awareness of the relevance of gender equality issues; research is being conducted on the gender dimension of trade policy; and there is a widespread belief that trade can be instrumental for long-lasting development only if it is more inclusive and its benefits are more equally shared.⁴

South American countries have adopted a proactive attitude towards the inclusion of a gender perspective within their trade policymaking. For example, at the regional level, the Pacific Alliance can be highlighted due to the implementation of a roadmap to address women’s economic autonomy and empowerment⁵ and, at the bilateral level, the Chile–Uruguay FTA became the first to include a gender and trade chapter.⁶ This chapter became a template for trade negotiations worldwide, as well as a stepping stone for the evolution of such chapters in other agreements.

The main objective of this chapter is to analyse how South American economies have mainstreamed gender issues in their trade agreements, and to identify common elements in such agreements and their evolution. For this purpose, the chapter reviews the incorporation of gender provisions in bilateral trade agreements and the region’s integration processes (Pacific Alliance and Mercosur). With respect to the methodology used, this chapter analyses and compares primary and secondary sources, and, in particular, presidential declarations from integration processes and the contents of the text of various FTAs, their enforcement and governance. Moreover, in-depth semi-structured interviews with key stakeholders from the public sector were conducted to complement previous analysis, looking into the motivations and reasons behind the different legal clauses.⁷ The results of the interviews are woven into the text of the chapter, which also includes analysis in specific sections. The field research – which includes face-to-face and virtual interviews prior to the pandemic, and online zoom interviews after lockdown and during social distancing measures – was conducted between December 2018 and October 2021 and entailed interviews with stakeholders from Argentina, Chile, Colombia, Peru, and Mexico, as well as representatives from international organizations. In total, thirty-four interviews were carried out with a variety of stakeholders, including former trade ministers, vice ministers, negotiators, experts from international organizations, and academics. Due to the positions interviewees hold, the results have been anonymized. Moreover, although there is consensus regarding the incorporation of gender provisions in international trade agreements, a divergence in opinions is found between members who hold public office and members from international organizations and academia. This chapter demonstrates how South American countries have advanced their trade policymaking regarding gender-sensible regulations, which has been influential for trade and gender negotiations in other regions.

This chapter is divided into the following sections. Section 12.2 reviews the relevant literature regarding the inclusion of gender issues in trade policy. Section 12.3 revises gender mainstreaming in the Pacific Alliance and Mercosur. Then, Section 12.4 presents an overview of gender inclusion in South American PTAs. Section 12.5 presents analysis of the inclusion of gender provisions in South America’s FTAs. To conclude, Section 12.6 contains final remarks and policy recommendations.

12.2 Gender Mainstreaming in Trade Policy Instruments

It is crucial to analyse FTAs through a gender perspective. This would contribute to determining whether the decisions of a society favour the search for social and economic justice and the scope and limitations of macroeconomic policies. The literature has established that trade strategies which are focused on lowering labour costs and maintaining gender disparities can cement a path of underdevelopment and obstruct the transition to sustainable development.⁸ Through the incorporation of a gender perspective into FTAs, governments can push their trade partners to develop laws and processes that decrease obstacles to women’s access to trade.⁹

The first multilateral step towards including gender in international trade policy goes back to the World Trade Organization’s (WTO) claim that trade liberalization is linked to greater accumulation of education, skills, and increased gender equality.¹⁰ This claim has led international organizations and governments to incorporate a gender-based perspective within their trade agenda, making it a worldwide priority.¹¹ Nevertheless, there is no consensus to include gender within multilateral negotiations amongst WTO members. Many WTO members have argued that the WTO should deal only with trade-related issues that imply trade distortions, but not social issues such as gender inequality.¹² Some NGOs have argued the opposite, as gender equality contributes to economic growth and poverty reduction, and women make up 70 per cent of the world’s poorest share of the population.¹³ Although it was not included in the trade negotiation agenda, the 2017 Buenos Aires Declaration on Women and Trade,¹⁴ which aims to promote and remove impediments to women’s economic empowerment, was endorsed by 118 WTO members and observers.¹⁵ Moreover, in the WTO’s 12th Ministerial Conference, held in Geneva in June 2022, members recognized the relevance of women’s economic empowerment and the work that international organizations such as the WTO, the United Nations Conference on Trade and Development (UNCTAD), and the International Trade Centre (ITC) are doing in this respect.¹⁶

Gender considerations must be a part of the integral design of the different trade policies.¹⁷ The literature has identified the following trade policy tools that could contribute to gender equality:

• First, gathering specific trade and gender information can mitigate the lack of data about women in economic roles.¹⁸ Since December 2017, following the Buenos Aires Declaration, countries have sought to exchange methodologies and processes for collecting gender-disaggregated data and analysing gender-focused trade statistics.¹⁹

• Second, the participation of civil society and private stakeholders, including business chambers and women’s organizations, can be instrumental in identifying gender objectives within trade policy and advocating for this change in the future.

• Third, ex ante and ex post evaluation of the impact of an agreement on women, and the necessary adaptation and compensation for the impact of trade on women, are important to produce evidence on how trade impacts gender concerns.²⁰ Trade policies that will favour women’s well-being and empowerment and mitigate gender disparities can use an ex ante assessment to analyse the potential impacts on specific segments of the population.²¹

• Fourth, the increasing participation of women in the policymaking process, international markets, and the awareness brought by different campaigns for gender equality in the last few years have allowed the incorporation of gender chapters in trade agreements.²²

• Fifth, mainstreaming gender in all trade disciplines can be achieved through the prohibition of gender discrimination, the inclusion of affirmative actions, and reservations in areas where the state’s regulatory power over gender equality must be protected.

• Sixth, the implementation of trade facilitation measures including borders and customs, commerce and transportation infrastructure, and logistics which may benefit women by ensuring a more predictable and inclusive workplace.²³

• Seventh, the promotion of women’s export entrepreneurship, and the elimination of restrictions and legal barriers to access financing can also help in addressing gender concerns within the trade policy context. The inclusion of women entrepreneurs and workers in higher-level sectors such as knowledge-intensive activities may promote a more gender-equal society. This can be reinforced by enhancing women’s participation in leadership positions within productive structures, including regional and global value chains. Moreover, the latest developments due to the COVID-19 pandemic have raised the awareness of the care economy and women’s participation in the digital economy.²⁴ Against that background, the following section provides a discussion on how the existing trade agreements in South America have embraced these gender-mainstreaming tools.

12.3 Gender Mainstreaming in South America’s Main Integration Processes

The most important processes of economic integration in South America include Mercosur and the Pacific Alliance. Mercosur was established in 1991 by Argentina, Brazil, Paraguay, and Uruguay, with the objective of creating a deep integration process in the region to foster economic and investment opportunities. The Pacific Alliance is a more recent initiative established in 2011 by Chile, Colombia, Mexico, and Peru to promote members’ higher economic growth and competitiveness through a mechanism of economic, political, and social articulation.

12.3.1 Gender-Specific Policies under Mercosur

The incorporation of women and gender has been a longstanding topic of discussion in Mercosur’s working agenda. Members have incorporated different actions in their integration process work, including the Specialized Meeting of Women, a body that was created in 1997. This body was established in response to the increasing demand of civil society and women’s movements for a forum to foster the analysis of women’s situations and contribute to the social, economic, and cultural development of various communities. Amongst other issues, the meeting recommended male–female parity in the composition of the Mercosur Parliament.²⁵ Moreover, in 2008, a project to strengthen gender institutions and policies was implemented in cooperation with the Spanish Agency of International Cooperation.

Mercosur members have also worked towards the collection of gender-disaggregated data, for which a diagnosis on indicators on domestic violence was released in 2010. In 2011, on the occasion of the 100th Summit of the International Labour Organization (ILO), a Joint Statement was issued to support ILO Convention 189 on decent work for domestic workers. In the same year, the gender perspective was incorporated into the Strategic Social Action Plan, following which the Women’s Ministers and High Official Meeting of Mercosur (RMAAM) was established. This led to the Mercosur Gender Equity Policy, built in collaboration with various regional forums and women’s organizations.

Another important topic analysed by Mercosur members relates to trafficking of women, and in particular the identification of domestic and international routes used for such trafficking. This led to the establishment of a Mercosur Guide on awareness of women victims of trafficking with the purpose of sexual exploitation.²⁶ In 2014, the Mercosur Guidelines on Gender Policy were approved, setting the ground for equality and non-discrimination of women in the region from a feminist and human rights perspective.

As stated, while Mercosur has acknowledged the relevance of incorporating a gender perspective in its social and governance agenda, it has not yet addressed this topic in relation to trade or trade agreements. In this context, Mercosur’s trade liberalization has been argued to have mixed and potentially detrimental effects.²⁷ Further, analyses show that current Mercosur international trade patterns tend to benefit male-oriented sectors, and do not contribute to women’s employment.²⁸ Hence, the mainstreaming of gender into trade policymaking becomes an opportunity for the next steps in this regional integration process in order to foster inclusive and sustainable development.

12.3.2 Gender-Specific Policies under the Pacific Alliance

The Pacific Alliance’s Additional Protocol has not yet incorporated specific gender-related provisions.²⁹ In 2015, members agreed on a gender approach at the Tenth Summit of the Pacific Alliance. The Gender Technical Working Group (GTG) was created to promote the gender perspective throughout the Alliance, to incorporate women leaders in exports, and to establish virtual platforms to address trade and gender, mainstreaming a gender perspective into cooperation, SMEs, export promotion agencies, the digital agenda, and innovation groups. In the Eleventh Summit, the Presidential Mandate³⁰ proposed the incorporation of female entrepreneurs into the export process, and the establishment of virtual platforms to promote gender and trade dialogues. Following this, the Alliance commissioned the Organisation for Economic Co-operation and Development (OECD) to assess gender equality in the member economies.

The 2017 Presidential Declaration³¹ referred to the contribution of the gender perspective for the fulfilment of the 2030 United Nations’ Agenda for Sustainable Development Goals (UN SDGs).³² This led to the creation of the Virtual Community of Female Entrepreneurs and the III Forum of female entrepreneurs of Colombia, Chile, Mexico, and Peru.

In 2018, the Women Entrepreneurs Community platform, which is linked to ConnectAmericas, was established. The work under this initiative is complemented by Mujeres del Pacífico (Women of the Pacific), a private initiative that works with the Chilean Economic Development Agency (CORFO), the Inter-American Development Bank (IADB), and the Association of Entrepreneurs of Latin America (ASELA) through its Multilateral Investment Fund. In the same year, the Pacific Alliance Observatory issued a report identifying women-oriented programmes.³³ This report displayed the differences in the number of women-favouring programmes offered by each country, Colombia (twenty-three), Chile (fourteen), Mexico (eleven), and Peru (three), and highlighted that only 18 per cent of them referred to the need to mitigate sexist stereotypes.

In 2019, to clarify the understanding of concepts such as discrimination and gender equality, amongst others, the GTG created the Gender Glossary.³⁴ The GTG with IADB conducted a survey of 1933 women-owned businesses in Chile, Colombia, Mexico, and Peru. Preliminary results, presented at the Pacific Alliance Webinar on Women and International Trade in 2020, show that 78 per cent of surveyed businesswomen were sole/majority shareholders of companies, out of which 73 per cent were micro companies, 20 per cent small, 5 per cent medium, and 2 per cent were big enterprises.³⁵ Services, food, and beverage industries constitute the majority of sectors in which they work, except in Peru, where textiles and clothing are key industries where women engage as entrepreneurs and business-owners.

In 2020, the GTG launched the Guidelines for the Use of Inclusive Language in Technical Groups of the Pacific Alliance.³⁶ The study, with IADB, was expanded to include the effects of the COVID-19 crisis. The Pacific Alliance countries conducted a series of webinars to support the digitalization of women’s businesses and issued a Presidential Declaration on Gender Equality with a Roadmap for Women’s Autonomy and Economic Empowerment.³⁷ This roadmap reiterated the role of international agreements regarding women’s rights and commits to centring women in reactivation strategies and economic recovery. Additionally, the roadmap identifies priority actions to promote women’s entrepreneurship, labour participation, access to leadership positions, and decision-making in the political, economic, and social spheres; eliminate barriers to women’s autonomy; reduce the gender digital gap; and generate gender-disaggregated data.

Therefore, the Pacific Alliance has recognized the relevance of mainstreaming gender for sustainable development in its presidential declarations, technical groups, and the Roadmap for Women’s Autonomy and Economic Empowerment. However, current programmes should move into solid commitments included within the Pacific Alliance Additional Protocol (trade protocol), giving stability and permanence to the objective of gender equity.³⁸

12.4 Gender Mainstreaming in South American Trade Agreements

The inclusion of a gender perspective has been a latecomer in bilateral trade agreements. Whereas the word ‘women’ has been used to address gender issues in the past, the expression ‘gender’ has only appeared recently.³⁹ Nevertheless, the evolution of the language from ‘women’ to ‘gender’ is correlated with the progressive development of the gender mainstreaming paradigm, which flourished after the 1995 Beijing Platform for Action.⁴⁰

Although some WTO members have included provisions on gender in their FTAs, the scope, the form, and the enforceability of these provisions have been diverse. As of December 2020, from the 577 PTAs notified to the WTO, 83 (14 per cent) of them include at least one provision related to gender, and 257 (44 per cent) refer implicitly to gender impacts.⁴¹ Regarding commitments, some agreements have a single clause on substantial duties for the contracting parties, while others have a dedicated chapter on gender. However, such provisions and chapters are not legally binding. While most of these clauses are included in the main text of the agreements, some clauses are tucked away in subsidiary agreements, appendices, or protocols. Reaffirmation provisions, for example, require members to repeat legal obligations made under other international treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ILO conventions, or the UN SDGs.⁴² Within South America, countries such as Chile and Uruguay have suggested a new paradigm in which free trade agreements are viewed as tools for attaining women’s economic empowerment.⁴³

Within this context, the opportunities of negotiations with like-minded countries have led to the creation and inclusion of gender chapters within free trade agreements. This has represented a shift in the way gender equality issues were treated within trade agreements, as in previous trade agreements parties usually made a reference to gender issues in the preambles of the agreements or only addressed them as a general issue.⁴⁴ For instance, the Chile–Vietnam FTA (2014) proposes gender as one of the spheres of cooperation within its cooperation chapter,⁴⁵ and the Peru–Australia FTA (2020) refers to women and economic growth within its development chapter.⁴⁶ In the provision titled ‘Women and Economic Growth’, the contracting parties in this agreement have recognized the necessity to enhance opportunities for women so as to contribute to economic development, for which it promotes cooperation activities that will improve the ability of women to fully access and benefit from the opportunities created by the agreement.

The Chile–Uruguay FTA (2016)⁴⁷ marked the first inclusion of a dedicated chapter on gender and trade in the framework of a bilateral FTA. In the case of Chile, gender became an explicit component of trade policy during Michelle Bachelet’s second government (2014–2018). The relevance of this topic during her administration was based on two main elements: (i) women’s role as supporters of the economy; and (ii) the lack of information, discussion, proposals, and institutional participation. In addition to the Ministry of Women and Gender Equity created in 2016,⁴⁸ in terms of trade policy formulation and implementation, the General Directorate of International Economic Relations (DIRECON) included a gender-perspective approach in its work agenda,⁴⁹ to identify relevant spaces where gender-sensitive measures could be addressed.⁵⁰ In the case of Uruguay, under the second mandate of President Tabaré Vasquez (2015–2020), a process of bilateral free trade agreements negotiated outside Mercosur was initiated.⁵¹ Both governments’ coalitions had a progressive agenda in place, which gave gender issues a prominent position within their public policies. This created suitable conditions for the inclusion of a gender chapter in their bilateral FTAs.

Following the Chile–Uruguay agreement, Chile incorporated gender issues in its negotiation processes. The agreements between Canada and Chile (June 2017), Argentina and Chile (November 2017), Brazil and Chile (December 2018), and Chile and Ecuador (August 2020) each included a trade and gender chapter.⁵² The Chile–Canada FTA is a modernized version of the 1997 agreement, which corresponds to a progressive trade agenda as a response to the worldwide rise of anti-globalization populism and the concentration of trade gains at the top of the income scale that have left women, among others, behind.⁵³ The Chile–Uruguay FTA, Argentina–Chile FTA, and Brazil–Chile FTA are established in the context of the Economic Complementation Agreement 35 among Chile and Mercosur parties.⁵⁴ In particular, the Chile–Brazil FTA includes a framework of good regulatory practices in order to promote an open, fair, and predictable environment for companies in Chile and Brazil,⁵⁵ in order to respect, amongst others, issues relating to the environment and gender issues. Regarding the Chile–Ecuador FTA, the objective of modernizing the existing agreement was to include new issues related to trade in services and to achieve a deeper level of integration, comprising an inclusive approach under which gender provisions were incorporated.

In a multilateral arena, in 2018, Canada, Chile, and New Zealand established the Inclusive Action Group (ITAG) to create progressive and inclusive trade policies to guarantee that benefits from trade and investment are equally distributed. In 2020, they signed the Global Trade and Gender Arrangement (GTAGA) to stimulate women’s participation in international trade, recognizing the relevance of having a gender perspective in the promotion of an inclusive economic growth.⁵⁶ This agreement acknowledges parties’ equality laws and regulations, calling on members not to weaken or reduce their protection in order to increase their trade and investment benefits. The three countries, by signing this agreement, have sought to ensure that trade policies are inclusive and that they become more inclusive with time, which is relevant for the post-pandemic economic recovery. The agreement’s coverage has expanded as Mexico (6 October 2021), Colombia (13 June 2022), and Peru (13 June 2022) have acceded to it.

Moreover, the ongoing trade negotiation mandates on several FTAs including Canada–Mercosur, Chile–European Union, Chile–South Korea, Chile–Paraguay, and the associate members of the Pacific Alliance include trade and gender issues (Figure 12.1). As these negotiations are still in process, it is not clear which instrument or approach will be used to establish commitments on gender issues. Nevertheless, during the field research, interviewees expressed that it was most likely that trade and gender chapters would be used, following the templates of previous FTAs.⁵⁷ The consideration of gender chapters in the ongoing negotiations highlights the instrumental role that gender policies may play towards a sustainable socioeconomic development and reinforce the parties’ commitment to effectively implement their normative policies and good practices towards gender equality and equity.⁵⁸

Figure 12.1 Timeline of South America’s gender references in trade agreements.

Source: Authors’ elaboration.

12.5 Assessment of Gender Issues in South American FTAs

In order to understand how South American economies have mainstreamed gender issues, the trade and gender chapters in FTAs, as well as those in the GTAGA, are reviewed. This section provides an assessment of their content, their enforcement, and their governance.⁵⁹ Table 12.1 presents a detailed comparison of the agreements’ texts in the following dispositions: general provisions, international commitments, cooperation activities, and the establishment of trade and gender committees.⁶⁰

Table 12.1 Gender and trade provisions in South American FTAs

Agreement	Specific Chapter	Dispositions
		General provisions	International commitments	Cooperation activities	Trade and gender committee
Chile–Uruguay FTAa Additional Protocol (ACE 35) Chile–Mercosur	Chapter 14	– Common objective – No reference to Goal 5 of SDG	– Overall commitment towards the effective implementation of international agreements	Skills enhancement; financial inclusion; agency and leadership; access to science, technology, and innovation; entrepreneurship	It should discuss potential cooperation activities, exchange information, discuss joint proposals, and manage administrate future topics
Chile–Canada FTAb (Modernisation)	Appendix II, Chapter N bis	– Common objective – SDG 5 – Agreement on Labour Cooperation and the OECD Guidelines for Multinational Enterprises	CEDAW Convention	Skills enhancement; financial inclusion; agency and leadership; access to science and engineering, technology, and innovation; entrepreneurship	It should discuss potential cooperation activities, exchange information, discuss joint proposals, and manage administrate future topics
Chile–Argentina FTAc Additional Protocol (ACE 35) Chile–Mercosur	Chapter 15	– Common objective – SDG 5	– CEDAW Convention – ILO Conventions (No. 100, 111, 156)	Skills enhancement; financial inclusion; agency and leadership; access to science, technology, and innovation; entrepreneurship	It should discuss potential cooperation activities, exchange information, discuss joint proposals, and manage administrate future topics
Chile–Brazil FTAd Additional Protocol (ACE 35) Chile–Mercosur	Chapter 18	– Common objective – SDG 5	– CEDAW Convention – Belem do Para	Skills enhancement; financial inclusion; agency and leadership; access to science, technology, and innovation; entrepreneurship	It should discuss potential cooperation activities, exchange information, discuss joint proposals, and manage administrate future topics
Chile–Ecuadore	Chapter 18	– Common objective – SDG 5	– CEDAW Convention – Belem do Para – Beijing Action Plan	Skills enhancement; financial inclusion; agency and leadership; access to science, technology, and innovation; entrepreneurship – Reference to funding sources	It should discuss potential cooperation activities, exchange information, discuss joint proposals, and manage future topics
Global Trade and Gender Arrangement, ITAGf (Chile, Canada, Colombia, Mexico, New Zealand, Peru)	N/A	– Common objective – SDG 5	– CEDAW Convention – WTO Buenos Aires Declaration	Seventeen areas of cooperation aimed at enhancing the ability of women, including workers, entrepreneurs, businesswomen and business owners, to fully access and benefit from the opportunities created by this Arrangement. – Reference to external funding sources	It should discuss potential cooperation activities and its funding, exchange information, discuss joint proposals, and manage future topics

Source: Authors’ elaboration based on Cáceres et al (2021).

^a Government of Chile, ‘Chile–Uruguay FTA’ <www.subrei.gob.cl/docs/default-source/acuerdos/uruguay/capitulos-uruguay/14-capitulo-14-g%C3%A9nero-y-comercio.pdf?sfvrsn=962199b6_2> accessed 19 April 2022.

^b Government of Chile, ‘Chile–Canada FTA’ <www.subrei.gob.cl/docs/default-source/acuerdos/canad%C3%A1/modernizaci%C3%B3n-del-acuerdo/acuerdo-modificatorio-inversiones-genero-y-comercio.pdf?sfvrsn=2c5ae24d_2> accessed 8 May 2022.

^c Government of Chile, ‘Chile–Argentina FTA’ <www.subrei.gob.cl/docs/default-source/acuerdos/argentina/capitulos-argentina/15-capitulo-15-g%C3%A9nero.pdf?sfvrsn=8326c19d_2> accessed 8 May 2022.

^d SICE - OAS, ‘Chile–Brazil FTA’ <www.sice.oas.org/TPD/BRA_CHL/FTA_CHL_BRA_s.pdf> accessed 8 May 2022.

^e SICE – OAS, ‘Chile–Ecuador FTA’ <www.sice.oas.org/Trade/CHL_ECU/Cap_18_s.pdf> accessed 8 May 2022.

^f Government of Canada, ‘GTGA’ <www.international.gc.ca/trade-commerce/inclusive_trade-commerce_inclusif/itag-gaci/arrangement.aspx?lang=eng> accessed 8 May 2022.

12.5.1 Content

As the GTAGA is the most recent agreement and is solely focused on trade and gender, it is not surprising that it contains more gender-related sections. This agreement includes new sections focused on deepening commitments. For instance, Section 5 titled ‘Gender and Responsible Business Conduct’ aims for the parties to incorporate the principles of internationally recognized standards that address gender equality in their jurisdictions. Section 6 titled ‘Discrimination in the Workplace’ focuses on the participants that support the goal of promoting gender equality in the workplace. Section 7 titled ‘Transparency’ and Section 10 titled ‘Trade and Gender Working Group’’ have been created to define the actions of the working group in gender cooperation. Finally, Section 13 refers to parties’ options to invite other economies interested in pursuing inclusive trade and investment approaches to join them. Following this provision, in the context of the 2021 OECD Trade Ministers’ meeting, Mexico was formally accepted into the GTAGA.⁶¹

It must be stated that the five agreements⁶² analysed in this section were accomplished in a short period of time, and that they have a very similar structure. Moreover, they went through an important imitation process, being the first agreements and providing a template for those that followed. In this regard, they share the same structure. In general, the sections contained in all agreements, except for the GTAGA, are: ‘General Provisions’, ‘International Commitments’, ‘Cooperation Activities’, ‘Trade and Gender Committee’, ‘Consultations’, and ‘Non-application of Dispute Resolution’. In fact, these agreements not only share a similar structure, but the content of the legal texts is almost identical. This is not a new phenomenon in the negotiation of trade agreements, which are usually settled using common templates.⁶³

Even though the chapters contain some mandatory elements, none of them requires a change in domestic regulations, as they mainly refer to cooperation activities. The chapters, within their general provisions, acknowledge the importance of incorporating a gender perspective into the promotion of inclusive economic growth. Moreover, they reaffirm parties’ commitments towards multilateral conventions, such as equal pay for equal work, maternity protection, and the balance of family and professional life.

In the Canada–Chile FTA, the Argentina–Chile FTA, the Brazil–Chile FTA, the Chile–Ecuador FTA, and the GTAGA, as stated by a high-level government official,⁶⁴ agreements were reached to carry out Goal 5 of the SDGs. A mention of the SDGs was omitted in the Chile–Uruguay FTA, as the SDGs were just being implemented at the time the agreement was negotiated. In this vein, scholastic research argues that mainstreaming gender in trade policy is deemed a vehicle and an accelerator for achieving the SDGs,⁶⁵ since trade policy has a vital role in promoting many other SDGs in addition to SDG 5 on gender equality, such as alleviation of poverty (SDG 1), improvement of education (SDG 4), promotion of decent working conditions for economic growth (SDG 8), and reduction of inequalities (SDG 10).

Within the ‘General Provisions’, the recognition that increasing labour participation, decent jobs, and economic autonomy of women contribute to sustainable economic development is part of all agreements. Nevertheless, they differ in how the provision is incorporated according to the parties’ international commitments. For instance, the Chile–Canada FTA and the GTAGA reaffirm the work done in OECD, which is not included in the other FTAs because Argentina, Brazil, Ecuador, and Uruguay are not members of the OECD.

An interesting difference within the agreements can be found in their second section, titled ‘International Agreements’. The Chile–Uruguay FTA only refers to an overall commitment towards the effective implementation of international agreements. The agreements between Chile and Canada, Argentina and Chile, Chile and Ecuador, Brazil and Chile, and the GTAGA explicitly include the CEDAW; and Argentina also includes references to ILO Conventions on remuneration equity (No. 100), on work and occupation discrimination (No. 111), and on workers’ family responsibilities (No. 156). As the GTAGA was signed after the 2017 WTO Ministerial Conference, it recalls the objectives of the WTO Joint Declaration on Trade and Women’s Economic Empowerment and refers to the implementation of ‘obligations under any other international agreements addressing women’s rights or gender equality to which they are party’ (Article 3.b). As explained by a high-level government official, this shows the quick evolution of gender-related chapters, and that countries have managed to include specific references to relevant international gender-related agreements in a short time. For instance, the Chile–Brazil FTA and the Chile–Ecuador FTA recall the Belem do Para Convention.⁶⁶ Chile and Ecuador have also made a commitment in their bilateral FTA to implement the 1995 Beijing Declaration and Platform for Action on the rights of women and girls and their empowerment. In this way, FTAs may signal the importance of various international treaties towards the accomplishment of a general well-being objective.

In terms of ‘Cooperation Activities’, all the above-mentioned FTAs as well as the GTAGA include almost identical provisions. This is the core of the trade and gender chapters, with activities that can be beneficial for women, considering areas such as skills enhancement; financial inclusion, agency, and leadership; access to science, technology, and innovation; entrepreneurship; and with respect to how trade and gender provisions are to be treated in the relevant chapters of the agreement. In addition, the Chile–Vietnam FTA and the Peru–Australia FTA also included ‘gender’ directly in their cooperation activities.

Nevertheless, it must be highlighted that the trade and gender chapters do not include a specific programme on cooperation, and do not define budgets, baselines, targets, objectives, measurements, or other relevant characteristics to enforce the cooperation. In this sense, cooperation activities are subject to the will of in-office administrations. Nevertheless, it can be argued that the most recent agreements (GTAGA and the Chile–Ecuador FTA) explicitly refer to parties’ commitments to find international donors, private sector entities, and NGOs to assist in the development and implementation of cooperation activities.

The chapter on trade and gender in the Chile–Canada FTA is the only FTA which contains sections on ‘Relation to the Agreement on Labour Cooperation’ and ‘Definitions’. With respect to labour cooperation, the section states that if there is any inconsistency between the chapter and the Agreement on Labour Cooperation or its successor, the latter will prevail to the extent of the inconsistency. Regarding ‘Definitions’, the Agreement on Labour Cooperation and the Agreement on Environmental Cooperation are defined and contextualized. Hence, there is a clear priority given to labour provisions over gender issues in this agreement.

12.5.2 Enforcement

One of the most important articles examined is the final provision within these chapters on the ‘Non-application of Dispute Resolution’. Amongst international treaties, a crucial characteristic of trade agreements has been their lack of enforceability. This has been possible due to the exclusion of these provisions and chapters from the jurisdiction of the agreements’ dispute resolution mechanisms that could use the annulment of trade preferences as a leverage mechanism to ensure parties’ compliance. As stated in Article 14.6 of the Chile–Uruguay FTA, Article N bis-06 of the Chile–Canada FTA, Article 15.6 of the Chile–Argentina FTA, Article 18.9 of the Chile–Ecuador FTA, and Article 18.7 of the Chile–Brazil FTA, no party may initiate a dispute for a breach of gender-related provisions.

It can be argued that such an exclusion makes the commitments on gender hortatory in nature. Therefore, the effective implementation of ‘International Agreements’ or ‘Cooperation activities’ are left to the willingness of the parties (and incumbent administrations), as the breach of gender-related provisions is not subject to any kind of retaliation. In this context, two lines of thought were encountered during the interviews.⁶⁷ On the one hand, some interviewees, especially from the public sector, argue that as the main impact of the inclusion of gender chapters in FTAs may not be on trade relations, the mere inclusion of a chapter reflects government’s willingness to incorporate and visualize this topic, which validates a gender perspective within trade policy agendas. On the other hand, interviewees from academia and international organizations have pointed out that including current chapters to the dispute settlement mechanism is not useful as they do not contain strong provisions to be enforced and they are built on cooperation activities without concrete legal commitments.

This situation is very similar to the evolution of environmental and labour clauses within trade agreements, which, at the beginning, were included as side agreements. However, they are now becoming a substantial part of trade negotiation agendas. The same can be argued for regulations relating to trade in services, which have been included at the multilateral level since the Uruguay Round negotiations that established the WTO (1986–1994). However, during the 1990s, not every economy wanted to include them in their bilateral treaties. Nowadays, almost every trade agreement includes not only a trade-in-services chapter, but also specific services-related chapters such as financial services, telecommunication services, movement of businesspersons, digital trade, amongst others. Therefore, it is not unlikely that new agreements may include gender-related chapters, with enforceable provisions.

12.5.3 Governance

In each of the above-mentioned FTAs, a Trade and Gender Committee is established to manage the possible outcomes of the agreement in areas such as potential cooperation activities, exchange information, discuss joint proposals, and manage any other related topic that may arise in the future.⁶⁸ This committee is supposed to meet at least once a year and it should review the implementation of the chapter after two years. Regarding the ‘Consultations’ section, the five chapters state that the contracting parties will make all necessary efforts to solve any issues that may arise regarding the chapter’s application and interpretation, through consultations and dialogue.⁶⁹ The GTAGA states that each participant will designate a contact point for trade and gender to coordinate the implementation of this arrangement.⁷⁰ Even though it contains the section on ‘Differences in interpretation and implementation’, it only states that participants should resolve any differences on the interpretation or application of this arrangement amicably and in good faith. However, there are no proper mechanisms set up for the consultation processes. The most advanced provisions in this respect can be found in the Chile–Ecuador FTA, which entered into force in May 2022. This agreement not only defines contact points and functions but also provides for a consultation procedure.⁷¹ This process is based on a mutually satisfactory resolution establishing timelines for each step. First, the affected party will present a request through contact points to solve the matter; if it is not solved, the request is transferred to the committee; and in case there is no resolution, it may be raised to the related ministers. At any step, good offices and conciliation can be used, and if an agreement is reached, the final report will be publicly available.

As the discussions show, these chapters have made various strides in mainstreaming gender in trade agreements, but they have various deficiencies. First, instead of including specific gender-related standards that could affect trade under the agreements, reference is made to the implementation of gender equality commitments included in global conventions. Second, milestones or specific goals are not included. Third, dispute-settlement mechanisms do not apply to such provisions. Fourth, the harmonization of gender-related legislation between the parties is not mandated. Fifth, potential impacts of trade liberalization pursued under the agreements on women’s well-being and economic empowerment are not addressed or mentioned in these agreements.⁷²

12.6 Conclusion

In South America, a gender perspective has been included in foreign affairs as well as in trade policies. The region has pioneered the incorporation of gender in trade policies, including in both trade negotiations and trade promotion. This is particularly true in the case of Chile. This chapter has analysed how South American economies have mainstreamed gender issues in their trade agreements, identifying their common elements and evolution. For this purpose, the chapter has reviewed the incorporation of gender provisions in bilateral trade agreements, Mercosur, and the Pacific Alliance.

At a regional level, both Mercosur and the Pacific Alliance have incorporated gender issues into their working agendas. Nevertheless, most of the work related to gender has been on social or institutional policymaking and not with respect to trade instruments. In other words, trade instruments lack a gender perspective or gender-related provisions, especially in regional economic integration instruments. It has been recognized that incorporating a gender perspective into trade policymaking can aid in achieving inclusive and sustainable development. Moreover, as both Mercosur and the Pacific Alliance have referred to their interest in gender topics, this may become a stepping stone towards regional convergence.⁷³

Regarding bilateral agreements, the inclusion of a gender-related chapter has become a common element in the latest agreements that are in operation, such as in the Chile–Uruguay FTA, the Chile–Canada FTA, the Argentina–Chile FTA, the Brazil–Chile FTA, and the Chile–Ecuador FTA. These trade and gender chapters consider trade as an engine for economic growth, thereby improving women’s access to opportunities and removing barriers to enhance their participation in national and international economies, and contributing to sustainable and inclusive economic development, competitiveness, prosperity and society’s well-being. These objectives have been reaffirmed by the GTAGA.

Although legally there is no mechanism to enforce the parties’ commitments on trade and gender, the mere inclusion of gender-related chapters is not only an important step towards guaranteeing that trade may benefit women and men equally, but a representation of an important milestone towards gender equity. First, the inclusion of such chapters is a recognition of the relevance of incorporating a gender perspective within trade negotiations. These chapters take into consideration the relevance of the nexus between trade and gender, and the importance for countries to take actions towards allowing women to benefit from trade liberalization. They identify ways to enhance women’s participation in international trade, as well as the relevance of sound public policies that may be directed to use trade as a tool for achieving gender equity.

Second, the evolution of the chapters’ negotiations allows the relevant elements in the trade and gender relationship to be identified and assessed. As reviewed in this chapter, the Chile–Uruguay FTA does not deepen the legality of commitments in certain provisions. For example, the recent FTAs signed between Brazil and Chile, Chile and Ecuador, and the GTAGA, have shown detailed specifications in certain elements and references to international agreements (such as the UN SDGs, CEDAW, or the ILO conventions). However, the Chile–Uruguay FTA does not refer to any agreement in particular. In this way, as new chapters are negotiated, more specific issues are encompassed within the agreement, allowing the best policies to be formulated.

Third, the evolution of agreements must be taken into consideration. Although at this point gender-related chapters are not subject to dispute-resolution mechanisms, agreements do evolve. For instance, the FTAs between Chile and Canada, and Chile and Ecuador have been outcomes of a renegotiation process of their predecessors. This evolution must be considered for each agreement, and for trade negotiations in general. As new topics arise, they are initially included as side agreements or non-enforceable chapters (which is the case for gender chapters). However, once the topic is more widely accepted by the international community as relevant and important, new agreements are more likely to include these topics as binding and enforceable commitments.

Nevertheless, for trade policy instruments to be drivers for women’s economic empowerment, it is necessary to strengthen commitments, elaborate concrete programmes for the development of cooperation activities, and conduct periodical ex ante and ex post assessments. Trade and gender chapters should not only contain declarative provisions, but also obligations to undertake regulatory changes at the domestic level and guarantee their compliance. Moreover, cooperation activities, which are the core of these agreements, need to be planned accordingly, for which timelines, specific activities, areas to cover, and budgets are required. Besides, for countries to improve women’s participation in trade, women’s presence in each economic sector should be studied and acknowledged through sex-disaggregated data. This will become the first step towards conducting quantitative and qualitative assessments to see the expected impacts of trade policies on women, as well as the actual changes in the economy after their implementation.

13 Gender Mainstreaming in Trade Agreements Best Practice Examples and Challenges in the Asia-Pacific

Amrita Bahri

13.1 Introduction

Without exception, women across the globe have suffered from the economic and social consequences of the COVID-19 pandemic.¹ In particular, women entrepreneurs and employees have been disproportionately impacted due to the pre-pandemic disadvantages they have faced in the economic, social, financial, and regulatory ecosystems in which they operate.² These disadvantages may include, but are not limited to, lack of access to educational opportunities; the digital divide between men and women caused by lack of affordability and digital know-how; lack of access to productive resources such as land, finances, and other assets; disproportionately high tariff and non-tariff barriers faced by women-owned businesses engaged in agriculture and textiles; lack of access to trade-related information and business networks; and disproportionately high burdens in discharging household responsibilities.³ The COVID-19 pandemic is magnifying the impact of the pre-existing barriers that women face, bringing about massive loss of jobs and business opportunities, declining access to education as it goes online, spiralling increases in household responsibilities, and domestic violence against women.⁴ Recent studies have shown how limited gains made in respect of gender equality are now at serious risk of being rolled back.⁵

Countries can employ two different approaches to counter these challenges: a bottom-up and a top-down approach. Using a bottom-up approach, countries can directly try to change national laws, culture, and social norms at the domestic level, which then permeates to the higher levels of policy making. Alternatively (or complementarily), in the top-down approach, they can use international law to create incentives to bring about a change at the domestic level.

In the realm of women’s empowerment, international trade law and policies can form part of this ‘top-down’ approach. The WTO’s Joint Declaration on Trade and Women’s Economic Empowerment⁶ is an important step in this direction. The Declaration, signed in December 2017 at Buenos Aires by almost 70 per cent of the WTO membership, reaffirms that ‘international trade and investment are engines of economic growth for both developing and developed countries, and that improving women’s access to opportunities and removing barriers to their participation in national and international economies contributes to sustainable economic development’.⁷ The Declaration is aligned with and complements the United Nations (UN) Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) 1979⁸ and Goal 5 of the Sustainable Development Goals (UN SDGs) in the UN 2030 Agenda for Sustainable Development.⁹

Moreover, recent trends show a promise in terms of the role that Free Trade Agreements (FTAs) can play in this respect.¹⁰ Since 2016, there has been an upsurge of FTAs that are carving out space for gender-equality concerns through the incorporation of provisions and chapters on trade and gender. These trends show that FTAs can act as laboratories in which to experiment with the complex amalgamation of trade and gender concerns. In this race towards making trade more inclusive, have FTAs proven to be trend-setters? This chapter shows that they have pushed for an inclusive trade agenda aiming to distribute trade benefits in a gender-just manner.

This chapter provides a comprehensive account and assessment of gender-related provisions included in the existing trade agreements negotiated by countries in the Asia-Pacific, considers the extent to which gender concerns are mainstreamed in these agreements, and examines the reasons that impede such mainstreaming efforts in the region. Section 13.2 provides an overview of different gender-mainstreaming trends in trade agreements. Section 13.3 clarifies what gender mainstreaming entails in the trade policy context. Section 13.4 provides an overview of those trade agreements signed by Asia-Pacific countries that have accommodated gender-equality concerns. Section 13.5 concludes and provides a discussion on potential barriers and hesitations that impede gender-mainstreaming efforts in this region.

13.2 An Overview of FTAs Mainstreaming Gender Concerns

In recent years, more and more countries have included gender considerations in their trade agreements, albeit in different ways, formats, and drafting styles. Some FTAs have a whole chapter with a number of provisions on trade and gender, but no compulsory and enforceable obligations.¹¹ Some FTAs have a single gender-explicit provision, but that single provision creates a legally binding obligation.¹² Some countries have sought to work on these concerns via cooperative actions, including exchange of best practices and organization of capacity-building workshops;¹³ while others have reserved the right to regulate particular services that directly impact women or services related to nutrition or childcare for instance.¹⁴ In some agreements, all we find are general statements wherein parties acknowledge the importance of the role of women in trade and commerce.¹⁵ In other agreements, we find affirming and reaffirming provisions, wherein parties commit to engaging in concrete actions or reaffirm their commitments made under other international instruments.¹⁶ Moreover, several agreements are completely silent or merely make a single mention of expressions relating to gender equality, and others mention gender-explicit expressions more than forty times in their main text.¹⁷

In most agreements, gender-related provisions are non-binding, and are drafted with non-mandatory expressions and ‘soft’ permissive grammatical constructions.¹⁸ However, a handful of countries have drafted such provisions with legally binding obligations.¹⁹ Gender-related provisions are considered legally binding when they are drafted with mandatory verbs (such as ‘shall’ or ‘must’) and their implementation is compulsory in nature, and enforceable under dispute settlement mechanisms.²⁰ Most of the gender-related provisions are found in chapters on cooperation, which mostly are excluded from the agreement’s dispute settlement mechanism’s scope.

The topics addressed in gender provisions also vary from one region to the other, as some regions have included provisions on social and healthcare concerns of women (such as Asia-Pacific),²¹ and others have covered purely economic and market-oriented interests (such as North or South America).²² The location of gender provisions in different agreements is also diverse, as they are included in agreements’ preambles, objectives and principles clauses, stand-alone chapters, side agreements, specific provisions, cross-cutting provisions or chapters, protocols, arrangements, and even annexes.²³

Variations are also found in the level of readiness countries have developed over the years to discuss and negotiate gender concerns in the context of trade policy. On one hand, various countries in North and South America, Africa, and the European Union are leading gender-mainstreaming efforts.²⁴ On the other hand, many countries are yet to take their very first step in this regard.²⁵ For example, several countries in Asia-Pacific have either opposed the inclusion of gender concerns in trade policy instruments or are reluctant to engage in such negotiations without fully comprehending the impact such provisions can have on their trade, economy, sovereignty, and social concerns.²⁶

Most of the agreements negotiated by countries in Asia-Pacific are gender-blind, as they do not contain any gender-related or gender-considerate provision.²⁷ As compared to other regions, the Asia-Pacific countries have negotiated the lowest number of agreements with provisions relating to gender-equality concerns. For example, 38 per cent of trade agreements signed by North American countries have included at least one gender-explicit provision.²⁸ For South American countries, this number is just over 20 per cent, and it is 32 per cent in the case of African countries.²⁹ As many as 78 per cent of the EU’s agreements contain at least one gender-explicit provision, even though most of these agreements are not merely trade agreements in a strict sense, and are drafted as association or integration agreements that include gender commitments in social or cooperation pillars of such agreements.³⁰ Out of all trade agreements signed by the Asia-Pacific countries, only 14 per cent have incorporated one or more gender-related or gender-explicit provision.³¹

These numbers show that the Asia-Pacific is behind other regions in respect of using trade agreements to further gender equality concerns. Moreover, unlike gender provisions on market, employment, or resource access negotiated by countries in the Americas or East Africa, the focus of gender-related provisions in Asia-Pacific has been on women’s personal welfare concerns.³² A handful of agreements that have included such commitments have mainly envisaged women as mothers as they have focused on enhancing women’s access to affordable childcare facilities, and other maternity benefits, and protection of healthcare interests.³³ In addition, the style of these provisions is in stark contrast to how such provisions have been drafted by countries in other regions.

13.3 What Is Gender Mainstreaming in a Trade Policy Context?

Gender mainstreaming can be defined as ‘the (re)organization, improvement, development, and evaluation of policy processes so that gender equality perspective is incorporated in all policies at all levels at all stages, by the actors normally involved in policymaking’.³⁴ It is a means to achieve gender equality. Gender mainstreaming in FTAs means the inclusion of gender concerns in the drafting and implementation of FTAs. This is a process by which parties seek to include the gender perspective in trade liberalization efforts and policies. The process of mainstreaming affirms a country’s commitment, understanding, and political will to reduce gender inequalities through trade policies and agreements. The process also aims to maximize the positive impact and minimize the negative impact of trade agreements on women’s empowerment goals. The term ‘gender responsiveness’ is also used extensively in this chapter, and refers to an assessment of how sensitive, informed, or committed the provisions of a trade agreement are to gender equality.³⁵ In other words, the way and extent to which an agreement mainstreams gender equality considerations defines how responsive that agreement is to gender equality concerns.

Gender mainstreaming in trade agreements can be employed to strengthen women’s empowerment. FTAs can play an important role in reducing gender inequality because countries can encourage their trade partners to create laws and procedures that can reduce barriers and create encouraging conditions for women’s participation in trade and commerce.³⁶ In this manner, countries can use these negotiating instruments to incentivize change at the domestic level in other countries in exchange for enhanced or unfettered market access. In short, the lure of market access to important markets can be used to enhance gender equality through FTAs.

13.4 Trade Agreements Signed by Asia-Pacific Countries: Best Practice Examples

The Asia-Pacific region is home to almost half of the world’s population, and hence any action to reduce gender inequality by countries in this region can impact the lives of many women in the world. Moreover, the region accounts for almost 37 per cent of world GDP at purchasing power parity and major economic powers such as the United States, China, Australia, India, Singapore, Japan, and Taiwan are also situated here.³⁷ These states in Asia-Pacific play an important economic role as they contribute significantly to the world economy.³⁸

In total, the 66 countries in the Asia-Pacific region have notified a total of 152 trade agreements to the WTO that are currently in force.³⁹ Amongst these, 22 agreements have gender-explicit provisions; that is, only about 14 per cent of its agreements have some sort of gender consideration.⁴⁰ The countries that lead the gender mainstreaming trend in this region are Australia, New Zealand, Singapore, South Korea, and Vietnam, and most recently Japan. The most commonly found provisions are drafted in the form of ‘right to regulate’ reservations. These reservations help countries to strike a balance between protection of investment or trade liberalization and the signatory’s policy space to regulate on issues such as national security, public health, environment, and gender equality, among others.⁴¹

13.4.1 Best Practice Examples

The FTAs’ gender provisions negotiated by countries in this region mostly relate to women’s personal welfare concerns. Access to affordable childcare, and other maternity benefits, protection of healthcare interests, and physical safety are considered some of the effective enablers for empowering women in this region. The Australia–New Zealand Closer Economic Agreement (ANZCERTA),⁴² for example, contains a reservation wherein New Zealand reserves the right to regulate in the area of social services, including childcare.⁴³ Childcare challenges pose a significant barrier to work, especially for mothers, who disproportionately take on unpaid responsibilities when they cannot find affordable childcare.⁴⁴ Provision of affordable childcare facilities is therefore vital, as their absence limits women’s employment opportunities and educational aspirations.

Similar provisions regarding the right to regulate in respect of childcare services are also found in the Peru–South Korea FTA⁴⁵ and the South Korea–Central America FTA.⁴⁶ In addition, in Annex I to the South Korea–Central America FTA, Costa Rica reserves the right to prevent the issuance of licences to sell alcoholic beverages in certain zones and areas (such as near child nutrition centres). This is not a gender-explicit provision per se, but it is relevant in the sense that it prohibits the selling of alcohol around child nutrition centres, and it is mostly women that are responsible for child nutrition and other caregiving responsibilities, which include accompanying children to such centres.⁴⁷ Therefore, such a restriction may enhance the physical safety of mothers regarding people who may, under the influence of alcohol, engage in socially undesirable behaviour and hence may become a cause of concern for their safety.

The signatories to the FTA between Hong Kong, China, and New Zealand⁴⁸ reserve the right to regulate certain services that relate to female professionals and women’s health interests. In Annex II and III to Chapter 13 on Services, the signatories reserve the right to regulate services provided by nurses, a profession which is significantly dominated by female professionals.⁴⁹ The reservation also extends to services relating to childcare, maternity care, services provided by midwives, services relating to supervision during pregnancy, childbirth, and the supervision of the mother after birth.

In the agreement between Association of Southeast Asian Nations and South Korea,⁵⁰ Singapore reserves the right to regulate certain types of social services including statutory supervision services related to the provision of accommodation for women and girls detained in a place of safety under Section 160 of the Singapore’s Women’s Charter (CPC 93312).⁵¹ Section 160 stipulates four cases in which the Director-General (DG)⁵² may order the detention or commitment of a woman or girl: (a) where a lawful guardian has requested the DG to detain her in a place of safety or to commit her to the care of a fit individual; or (b) if the DG feels that she is in need of protection and whose lawful guardian cannot be found; or (c) if the DG believes that she has been ill-treated and is in need of protection; (d) for whom the DG considers to be in moral danger. In these cases, Singapore reserves the right to regulate its supervision services for women and girls. This provision can be construed as both favourable and unfavourable for women and girls. It can be seen as a favourable provision as it seeks to ensure the physical safety of women and girls. However, the fourth instance mentioned above, where the DG can order detention or ‘commitment’ if a woman or a girl is considered to be in moral danger, gives unfettered discretion to the DG. This is because the concept of ‘morality’ is highly subjective and may change or evolve from place to place and with the passage of time. Another problem with this provision is the use of the word ‘commitment’. It is not defined in the statute itself, but the scope of this expression could extend to decisions relating to adoption, allocation to foster care homes or welfare centres, or even decisions related to matrimony. If that is the case, and if the statute is interpreted to allow the DG to interfere with a woman’s or a girl’s life in all these aspects owing to the DG’s moral judgement, it could be seen as an undue interference with, and a violation of, women’s right to freedom. Hence, in this sense, such a legal provision could be a double-edged sword and its impact would depend on how it is applied by the country.

The above-mentioned examples show that, unlike in other regions, several countries in the Asia-Pacific region have signed FTAs with legally binding reservations. South Korea and New Zealand seem to have currently led this approach, as they have negotiated several agreements with a binding ‘right to regulate’ provision. In the New Zealand–South Korea FTA,⁵³ parties have reserved the right to regulate certain health and social services that relate to female professionals and women’s health interests. In Annex II, which relates to Services and Investment, parties have reserved the right to adopt or maintain any measure with respect to maternity and related services, including services provided by midwives, and with respect to childcare. In the South Korea–Singapore FTA,⁵⁴ Chapter 9 on cross-border trade in services does not apply to subsidies or grants (including government-supported loans, guarantees, and insurance) or social services provided in conjunction with childcare (Article 9.2). Also, in Chapter 10 on investment, parties have reserved the right to regulate foreign investment in respect of childcare services (Article 10.2).

Though countries in the Asia-Pacific region have not engaged previously in negotiating a standalone chapter on trade and gender in their trade agreements, a recent development is worth mentioning. Japan and the United Kingdom have signed a Comprehensive Economic Partnership Agreement with a standalone chapter titled ‘Trade and Women’s Economic Empowerment’.⁵⁵ This includes declarative statements on the importance of enhancing opportunities for women in the domestic and global economy. It also contains parties’ affirmations on cooperation activities aimed at improving the access of women to markets, technology and financing, and developing women’s leadership and business networks. Parties have also committed to work on activities related to the WTO’s Joint Declaration on Trade and Women’s Economic Empowerment. Japan and the United Kingdom have also agreed to establish a Working Group to oversee and implement the cooperation activities mentioned in the chapter. The agreement’s preamble is gender-explicit, and states that the parties seek to ‘increase women’s access to and ability to benefit from the opportunities created by this Agreement and to support the conditions for women to participate equitably in the domestic and global economy’.⁵⁶ Such provisions in a trade agreement are unique in this region.

As can be seen from these examples, several agreements in this region seek to protect maternity and safety concerns of women. Hence, signatories to these agreements have envisaged the role of women as mothers and caretakers and not as employees, entrepreneurs, or decision-makers. This discussion shows why there is merely a slightly opened door in FTAs that countries in this region need to push further by recognizing women’s economic interests and including commitments on enhancing women’s participation in their markets and economies. Moreover, as noted before, only about 14 per cent of bilateral trade agreements in this region contain provisions with gender-explicit expressions.⁵⁷ This can be attributed to various hesitations that may impede such efforts in this region. The following section provides a discussion on three such factors.

13.4.2 Potential Factors Impeding Gender Mainstreaming Efforts

There are various factors that could have hindered the negotiation of bilateral trade agreements with gender provisions in this region. These factors may include, among others, lack of understanding and expertise, paucity of gender-disaggregated data, lack of political willingness, fear of protectionism, high cost and low probability of compliance, and fears of cultural imperialism.⁵⁸ The discussions in this section focus on the latter three factors – i.e., the high cost and low probability of compliance; fears of cultural imperialism; and lack of understanding and relevant expertise.

A first deterrent for countries in the Asia-Pacific region could be the high cost and low probability of compliance. Countries’ willingness and appetite for such inducements rely on their domestic conditions as countries may not be willing to be a part of agreements that contain obligations they cannot comply with.⁵⁹ Hence, countries may not usually engage in cooperation efforts that require departure from their domestic policies and practices or the ones that require countries to act differently than they would otherwise. The cost of compliance is therefore fundamental to a country’s decision to join an agreement which may require that country to change the status quo in respect of its laws, policies, and practices.

The further a country’s practices and policies discourage gender inequality and adhere to universally accepted gender equality norms, the more likely it is that the country will accept such a commitment in its trade policy instruments. Countries with practices and policies that do not adhere to commonly accepted norms (such as the elimination of discrimination based on sex) and hence are ranked poorly in gender-related indexes, might be less likely to accept such a provision.⁶⁰ Together with this cost of compliance, another deterrent could be the uncertainty as to the inconvenience countries might face with such gender commitments, as countries can invoke these provisions to justify a value that may either be related only remotely to gender equality or be a value that is not shared or observed by other countries.

The cost of compliance associated with gender-responsive trade agreements for several countries in this region could be discouragingly high, as most are found to have the widest inequality between women and men across health, education, economy, laws, and politics (with few exception of countries that score a high rating such as Japan, Australia, and New Zealand) as per Global Gender Gap Reports⁶¹ or World Bank’s Women, Business and the Law Reports.⁶² Hence, negotiating gender-responsive trade agreements may often require a departure from domestic policies for some of these countries and countries may also face difficulties in the ratification and implementation of such agreements, especially if they require changes in domestic laws, policies, and practices.

A second deterrent may be the fear of cultural imperialism. Trade agreements with commitments on gender equality or interpretation of gender-explicit provisions can allow another country (i.e., a trade partner) to effectively define the moral or cultural values of foreign jurisdictions without regard for their moral norms. If country A justifies a measure that bans or restricts trade with country B because country B ranks poorly on WEF Gender Gap Reports or because it does not adhere to its commitments under International Labour Organization (ILO) conventions, country B could perceive this as country A’s attempt to impose its own cultural standards on country B. An actual WTO case demonstrates this problem. The WTO Appellate Body’s (AB) ruling in EC – Seals⁶³ may be seen as legitimizing the moral imperialism that was inherent in the EU Seal Regime, since it could be seen as an attempt by the EU to impose its moral values on foreign jurisdictions without any consideration for their moral interests.⁶⁴ This imposition in a sense also contradicted the traditions and cultural practices related to seal hunting in Canada and Norway. In other words, by giving legitimacy to animal welfare concerns as a public moral concern, both the WTO panel and the AB subordinated the moral concerns of the indigenous sealing communities in other countries to those of the EU’s animal welfare concerns. This is a classic example that reflects how justifying a trade measure under a vaguely defined value (such as morality or gender equality) may allow the responding country to effectively define the moral concerns of foreign jurisdictions without any regard for their morals or even sometimes at the cost of destroying their comparative advantage in a particular product or industry.⁶⁵

Another associated consideration may be the risk of eliminating a country’s competitive advantage, given the low cost of women’s labour in a particular labour-intensive industry in several countries of this region.⁶⁶ ‘Cultural imperialism’ could therefore be perceived as a protectionist weapon to take advantage of unequal market power, as countries may use gender provisions to enhance their own competitive advantage by imposing their social or cultural model on countries that have a different set of values and concerns. At the European Parliament, some members have openly voiced opposition to the incorporation of gender equality in trade agreements owing to their fears that it might be seen as ‘colonialist behaviour’. Joachim Starbatty of the European Conservatives and Reformists Group said the following: ‘If we start putting forward clauses such as the one you are proposing, then we will be laughed at … We cannot impose our vision of gender on the world. It’s colonialist behaviour.’⁶⁷ The fears of cultural imperialism and the use of gender standards for protection of domestic industries are in fact the main concerns several countries have voiced when they have resisted or opposed any development in respect of trade and gender, such as the signing of the WTO 2017 Declaration, or even for joining the recently formed WTO informal group to discuss these matters.⁶⁸

In this connection, one might question how some countries, including Japan, have signed trade accords with gender-related commitments; ‘cultural imperialism’, and the risk of ‘reduced competitive advantage’ could act as limiting factors for these countries as well. The explanation seems to be particularly apt in the case of the UK–Japan Agreement, where both parties share similar levels of human development (i.e., they are both highly developed free market economies).⁶⁹ This finding is in line with a recent study that has shown that parties are more willing to accept gender-related commitments when they are negotiating these provisions with countries that are similarly situated in terms of gender development levels (as measured by the gender development index).⁷⁰ Having trade partners with similar domestic conditions minimizes fears of cultural imperialism. In the Asia-Pacific region, Japan is the only country that has signed a trade agreement (the UK–Japan CEPA) with a stand-alone chapter on trade and gender and a set of best practice provisions that seek to empower women economically within the trade policy context. Japan and the United Kingdom were both willing to negotiate gender-related legal provisions.⁷¹ Hence, another important factor is whether both trading partners in a particular agreement are willing and able to assume gender commitments within their trade policy context.

A third factor may be a lack of understanding and relevant expertise. The nexus between trade and gender is far from straightforward, and globalization and trade liberalization have contradictory effects on women’s employment and livelihoods.⁷² In some cases, they generate employment and business opportunities for women; in others, they create burdens by disrupting industries that employ women or are prevalent with small businesses run by women.⁷³ Lack of understanding and awareness on how international trade and gender equality are related impede gender mainstreaming efforts. Lack of understanding may also manifest itself in disbelief in and indifference to this approach.

Even though increased international visibility is being given to the gender equality dimension of trade, multiple countries fail to understand how these two different issues are interrelated. Several countries believe that FTAs are trade instruments concerned with market access issues, and hence they are not appropriate forums to discuss gender issues.⁷⁴ To overcome this impediment, countries need to ensure that their policymakers and negotiators gain an understanding of how trade can have gendered implications and how inclusion of women in economies is not merely the morally right thing to do but also has a compelling business case.⁷⁵ The government officials at the negotiating table must understand the gender equality implications of all substantive issues they are negotiating as part of the package. Enhancing this understanding within relevant government ministries responsible for trade negotiations is vital.

Even though multiple advances are made in research on enhancing understanding of this nexus, it has to some extent been held back by limited sex-disaggregated data. Multiple studies have shown a clear correlation between international trade and women as employees, business actors, and customers. However, what remains to be done is the gathering of concrete numbers that can attest to this correlation. Hence, the paucity of country-wise and industry-wise gender-disaggregated data on how trade disciplines impact women is perhaps slowing down the gender-mainstreaming efforts in trade negotiations.

Lack of understanding, data, and political willingness can translate to a complete absence of expertise within government offices in this respect. One trade negotiator has for instance noted that some trading partners just do not want to talk about gender while they are engaged in trade negotiations on the grounds that trade is gender-neutral, that FTA negotiations are no place for gender considerations, or that a FTA is not a tool to advance social issues.⁷⁶ Countries holding these views have no incentive or motivation to create capacity and expertise in negotiating agreements with a gender lens. The absence of expertise on gender issues within government departments responsible for carrying out trade negotiations is therefore another impediment that needs to be overcome in this respect.

Negotiators need to possess expertise on how to add a gender lens to the process of negotiations, drafting, and implementation of trade agreements. To build this expertise, negotiators and policymakers should be provided with up-to-date knowledge and developments on these issues through inclusion of debate on them in parliamentary discussions and high-level conferences, requiring negotiators to read relevant studies, and carrying out exchange visits to discuss and share experiences with negotiators from other countries in this respect. In addition, negotiators and policymakers can receive hands-on training on the following: (i) How are gender considerations mainstreamed by other countries? (ii) What are some best-practice provisions in this respect? (iii) What benefits have other countries realized from gender mainstreaming in the past few years? (iv) What are the main arguments behind mainstreaming gender in trade instruments? (v) What are the different ways of including gender considerations in trade agreements? (vi) How can the negotiators measure the gender-responsiveness of the trade agreements they are either negotiating or renegotiating, and if needed increase this responsiveness content? Answers to such questions would increase the understanding of negotiators and policymakers to reorient trade negotiations by mainstreaming gender equality concerns.

13.5 Conclusion

As discussed in this chapter, most of the agreements negotiated by countries in Asia-Pacific are gender-blind, as they do not contain any gender-related or gender-considerate provisions. The ones that contain gender-related provisions do not include commitments relating to women’s economic interests or economic empowerment as they mainly relate to their personal welfare concerns. However, recent developments show that the trade community in this region is slowly recognizing that trade policy can be used as a tool to empower women, which represents a positive change in the trade policymaking mindset. Yet, to ensure that the gender commitments that are included in trade agreements can become a ‘game-changer’ for women in the future, it is crucial to think about overcoming limitations and challenges that continue to impede gender-mainstreaming efforts in several countries including those of the Asia-Pacific region.

14 Crafting Canada’s Gender-Responsive Trade Policy

Marie-France Paquet and Georgina Wainwright-Kemdirim ^*

14.1 Introduction

The public concerns of the impacts of globalization,¹ and in particular the perception that benefits of trade have not been shared widely,² make it harder to continue to advocate for more and open trade at the multilateral level or in some cases at the bilateral level. At the same time, it is important to recognize that some of the benefits of trade are very tangible: consumers may enjoy a wide variety of products and at lower prices, businesses can benefit from economies of scale, and workers may benefit from increased wages.³

Canada is a trading nation: the value of exports and imports of goods and services amounted to 63 per cent of gross domestic product (GDP) in 2020.⁴ Canada depends on international trade to sustain high living standards. Improving access to international markets and participation in international trade and ensuring that everyone benefits from it is of paramount importance. Access to international markets is achieved through multilateral and bilateral trade agreements. Canada now benefits from a wide network of trade agreements providing preferential access through fifteen FTAs covering fifty-one countries, which represents 1.5 billion consumers and about 60 per cent of world GDP.⁵ Increasing participation in international trade means understanding the challenges that firms might face in trying to access international markets. Ensuring widespread benefits means understanding how trade in general, and how a specific FTA in particular, can affect workers. To determine if different groups are affected equally or not, it is important to analyse disaggregated data on dimensions such as gender.

The starting point is to recognize from the outset that the effects of trade might not be gender-neutral, including in Canada. The impacts of a trade agreement might affect workers differently since the distribution of men and women as workers or as business owners is not balanced between tradeable and non-tradeable sectors.⁶ Understanding the barriers that owners, in particular underrepresented groups, of small and medium-sized enterprises (SMEs) face in trying to participate in international trade is key. It allows for the development of better policies and programmes, and overall better outcomes.

Section 14.2 will present an overview of the evolution of trade policy in Canada and the nexus between trade and gender, including how the transition from general policy on inclusion and equality transitioned to inform Canada’s current practice. Section 14.3 will present and explain the four elements that constitute the analysis and research behind Canada’s gender-responsive and inclusive trade policies. Section 14.4 concludes.

14.2 Background

14.2.1 The Evolution of Canada’s Trade Policy

Canada’s trade policy is based on three mutually reinforcing priorities: supporting the rules-based international system which is the foundation of its trade policy; diversifying its trade and investment to new exporters and new markets; and championing inclusive trade which seeks to ensure that the benefits of trade are more widely shared.

Canada is highly dependent on the rules-based international trading system and has played a role in helping to build a global order based on the rule of law and an aspiration to free and more open trade. Canada is committed to upholding and actively participating in the rules-based multilateral trading system with the World Trade Organization (WTO) at its core. This system is necessary for creating a predictable and fair economic environment in which businesses can thrive, which is essential to increasing the economic well-being of all WTO members, contributing to a more prosperous and stable world. Canada believes that more trade and investment is essential for global economic growth to build prosperity and create jobs, and now more than ever given the effects of the COVID-19 pandemic and the need to ensure a resilient and sustainable economic recovery.

Canada also has a long history of negotiating comprehensive and ambitious free trade agreements (FTAs), starting with the Canada–US Free Trade Agreement (CUSFTA) in 1989⁷ and then the North American Free Trade Agreement (NAFTA) in 1994.⁸ Since these historic agreements, Canada continues to make significant efforts to diversify its trade, with the aim of allowing exporters to take advantage of opportunities in large and emerging markets. Bilateral and regional FTAs have represented a key tool for Canada in pursuit of trade diversification. As of September 2021, Canada had fifteen FTAs in force with fifty-one countries, representing about two-thirds of the global economy.⁹ Following the entry into force of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) on 30 December 2018,¹⁰ Canada became the only Group of Seven (G7) country to have FTAs with every other member of the G7, connecting Canadian businesses to over 1.5 billion consumers. Canada is currently engaged in FTA negotiations with other countries and trading blocs (e.g., Mercosur, Association of Southeast Asian Nations – ASEAN, Indonesia, the United Kingdom, and India) which reflects the importance that it places on free trade and the goal of establishing high-quality, ambitious, and comprehensive FTAs through improved market access benefiting companies of all sizes in a diverse range of markets.

Canada’s recent approach to negotiating FTAs has been informed by the public and political debates on trade and globalization in Canada. There are public perceptions that trade agreements lack transparency in the negotiating process; provide special rights and privileges to corporations; have negative effects on certain population groups (particularly the middle class and workers in traditional industries); and threaten the environment, health, safety, consumer standards, and governments’ right to regulate.¹¹ These concerns affect support for free trade, and hence the Government of Canada recognizes that trade policies need to respond and contribute more meaningfully to domestic economic, social, and environmental policy priorities, including its Feminist International Assistance Policy.¹²

Informed by these developments, Canada is pursuing an inclusive approach to trade as part of its overall export diversification strategy.¹³ Canada’s approach aims to ensure that the benefits and opportunities that flow from trade are more widely shared, including with underrepresented groups such as women, SMEs, and Indigenous Peoples. This trade policy approach is based on three pillars: informed and inclusive trade policy-making; provisions in trade agreements that are responsible, sustainable, transparent, and inclusive; and international engagement to advance support for responsible, transparent, and inclusive trade initiatives.

Canada has a long history of integrating gender-related clauses into the preamble of its agreements and also gender provisions in labour chapters and side agreements starting with NAFTA in 1994. Recently, Canada has been advancing comprehensive, binding, and enforceable commitments in its labour chapters related to gender, such as in CPTPP¹⁴ and in the Canada–United States–Mexico Agreement (CUSMA or USMCA).¹⁵ In these agreements, the parties are required to promote employment equity and address gender-based discrimination in the workplace and adopt programmes and policies that address the gender wage gap and barriers to the full participation of women in the workforce.¹⁶

Building on these successes, Canada has successfully advanced inclusive trade provisions in its modernized FTAs with Chile (2019)¹⁷ and Israel (2019),¹⁸ with the inclusion of dedicated trade and gender chapters in both agreements. In addition, at their first Joint Committee meeting in September 2018, Canada and the European Union (EU) agreed to three recommendations under the Canada–EU Comprehensive Economic and Trade Agreement (CETA) on Trade and Gender,¹⁹ Trade and SMEs,²⁰ and Trade and Climate Change.²¹ The CPTPP contains Canada’s first chapter on SMEs, a chapter also included in the modernized Canada–Israel FTA and the CUSMA.

Canada has also concluded the Global Trade and Gender Arrangement (GTAGA)²² with Chile and New Zealand in August 2020. The GTAGA is modelled on the trade and gender chapters Canada has negotiated in its trade agreements and aims to remove barriers to women’s participation in trade as business owners and workers. The GTAGA is an innovative non-binding plurilateral trade instrument, which is open for other countries to join. Mexico signed on to GTAGA and joined the Inclusive Trade Action Group (ITAG) in October 2021.²³ Peru and Colombia signed onto GTAGA in June 2022, and Ecuador and Costa Rica will join both GTAGA and ITAG soon.

14.2.2 Trade and Gender Nexus

Trade affects people differently, based on a wide range of factors, including gender.²⁴ Therefore, it is important to incorporate gender perspectives into trade policy in order to pursue inclusive and sustainable economic development and to achieve outcomes that are more beneficial for all, including workers, business owners, and entrepreneurs.

In Canada, women are overrepresented in lower-growth and lower-wage industries, such as the retail trade, and in less export-intensive services such as accommodation and food services.²⁵ In comparison, men dominate sectors where trade plays a significant role, such as manufacturing, agriculture, and resource extraction. Women account for a larger share of the workforce in service sectors, such as health services, where 81 per cent of workers are women, and in education services. Therefore, trade policies can have different effects on women and men as workers, depending on the sector in which they are employed and whether that sector is likely to expand or contract because of a trade agreement. Accordingly, trade policies need to consider gender-related factors during FTA negotiations so there is a better understanding of the risks and opportunities for particular population groups in the economy.

14.3 Advancing Inclusivity and Gender Equality through Trade Policy: From Policy to Practice

Canada launched FTA negotiations with Mercosur in March 2018²⁶ with a vision to pursue a comprehensive, ambitious, inclusive, and gender-responsive FTA in order to ensure that the benefits and opportunities flowing from international trade are more widely shared, including among traditionally underrepresented groups in international trade. Mercosur Member States and Canada were committed to ensuring that this FTA would realize benefits for all population groups and achieve lasting economic growth and development for all people, including women-owned businesses.²⁷

In these trade negotiations, Canada pursued a two-pronged approach: incorporation of dedicated cooperation-based inclusive trade chapters (such as trade and gender) and mainstreaming gender-responsive and inclusive provisions across the full agreement. This two-pronged approach is considered important because both strategies contribute to achieving a final agreement that supports women’s economic empowerment and gender equality.

A dedicated trade and gender chapter is important because it has value in terms of establishing as a priority identifying and removing barriers to women’s participation in trade and advancing women’s economic empowerment and gender equality. The trade and gender chapter recognizes the importance of mutually supportive trade and gender policies and incorporating a gender perspective into trade. It also recognizes the importance of not weakening gender equality laws in order to attract trade or investment, and recognizes the importance of implementing international instruments that advance gender equality and women’s economic empowerment (such as the UN Convention on the Elimination of Discrimination Against Women (CEDAW) and the Joint Declaration on Trade and Women’s Economic Empowerment).²⁸ It also establishes a framework to undertake cooperation activities and a bilateral committee to oversee the activities and report publicly on progress. These chapters are an important communication tool, giving recognition to the trade and gender nexus, helping build knowledge and understanding of the parties on the issues, and the barriers and challenges faced by women. Because they are cooperation based, they are a no-risk/high-reward opportunity, pragmatic, open to innovation, and customizable based on the needs of FTA partners. The long list of potential cooperation activities demonstrates the challenges faced by women workers or business owners that need to be addressed. These chapters can inspire domestic action as flanking policies and programmes may be developed in response to barriers identified. They also help deliver on SDG 5 and support a march to the top rather than a race to the bottom.

Canada recognizes that there are many misperceptions around the value of trade and gender chapters in trade agreements. Based on the gathering of empirical insights from stakeholders and trade negotiating partners, some of the criticisms include: the chapter is not valuable because it is not enforceable and parties will not take it seriously; the chapter is primarily best-efforts language and allows for a reduced commitment on the part of signatories and thus no real progress on gender equality is achieved; the chapter meddles in social policy or seeks to use a trade agreement to transform societies; the chapter is a hidden pathway to creating non-tariff barriers if parties do not support gender equality or women’s economic empowerment domestically; and if there is a trade and gender chapter in an agreement, there is no need to mainstream gender into other chapters of a FTA.²⁹ Canada disagrees with all of these critiques and firmly believes that pursuing only a trade and gender chapter in a trade agreement will not leverage an important opportunity to utilize a trade agreement to advance women’s economic empowerment and gender equality.

While Canada believes that trade and gender chapters are very important, mainstreaming gender across a trade agreement is equally important. Mainstreaming gender will not only help deliver on inclusive trade and support delivery of the SDGs, but it will also have many other benefits. For example, mainstreaming gender in other chapters will ensure that those provisions are enforceable under the agreement’s dispute settlement mechanism as typically to date trade and gender chapters have not been binding (except for the unique circumstance of the modernized Canada–Israel FTA,³⁰ which has a modified dispute settlement approach). Mainstreaming demonstrates that trade is not gender-neutral and that gender is relevant in all chapters of an FTA, and also in committee work following entry into force. It also helps move beyond narrowly defined sectoral rules and policies; inspires domestic policy development and implementation in women’s economic empowerment and gender equality areas; helps achieve overall domestic and trade policy coherence; and supports a holistic and whole-of-government approach to trade and gender policies. In addition, it serves to get governments to lead by example in addressing trade and gender issues and thus potentially inspire action by the business sector.

To that end, Canada is conducting comprehensive analysis and research to inform these negotiations. The overall findings are based on four elements:

• Element 1: Understanding the characteristics of women-owned SMEs, their propensity to export, and the obstacles they face;

• Element 2: Ex ante economic impact assessment;

• Element 3: Ex post analysis; and,

• Element 4: Comprehensive and dynamic GBA Plus.

Part of this analysis is conducted in parallel with the negotiations to ensure that findings are taken into account during the negotiations whenever possible. For example, the ex ante economic assessment and the initial GBA Plus are conducted before launching free trade negotiations. Therefore, the results of the economic impact assessment can inform the initial GBA Plus from the outset and during the negotiations.

14.3.1 Element 1: Understanding the Characteristics of Women-Owned SMEs, Their Propensity to Export and the Obstacles They Face

Studies have shown that women-owned businesses contribute $150 billion to the Canadian economy³¹ and employ over 1.5 million people.³² Furthermore, women start businesses at a greater rate than men in Canada, but women-owned businesses account for less than 16 per cent of SMEs³³ in Canada, and only 11 per cent of them export.³⁴

Using data from Statistics Canada’s Survey on Financing and Growth of Small and Medium Enterprises (2011, 2014, 2017), a study by Bélanger Baur³⁵ looked at the trends and business characteristics of Canadian exporting SMEs by gender of ownership. Women-owned SMEs are those where women’s representation is greater than 50 per cent, which can mean 100 per cent women ownership or a majority of it. One of the main findings of the study is that women-owned SMEs, in contrast to men-owned SMEs and equally owned SMEs, saw their export propensity (share of firms that export) more than double, growing from 5.0 per cent to 11.1 per cent, from 2011 to 2017.

The use of online tools to conclude sales could contribute to explaining this shift. Some preliminary research using firm-level data and controlling for firms’ size, labour productivity, sector, education, management experience, and age of firm,³⁶ shows that innovation and e-commerce allow women-owned SMEs to succeed internationally. Having an online payment feature is actually increasing the probability to export by 40 per cent compared to 20 per cent for men-owned and equally owned SMEs. Marketing innovation, or new ways to sell, leads to an increase in probability to export of 25 per cent for women-owned SMEs compared to 18 per cent for men-owned and equally owned SMEs.³⁷ This emphasizes the importance of e-commerce for SMEs in general, but even more so for women-owned SMEs.

Using the data from Statistics Canada’s Survey on Financing and Growth of Small and Medium Enterprises (2017),³⁸ Sekkel shows the percentage of exporting SMEs that considered obstacles while exporting as moderate or major, disaggregated by gender of ownership (Table 14.1).³⁹ Women-owned SMEs are more likely to cite logistical, border, and foreign administrative obstacles as an impediment to exporting. Logistical obstacles relate to distance to customers, transportation costs, and brokerage fees. Border obstacles include tariffs, non-tariff barriers, and import quotas, while foreign administrative obstacles refer to foreign customer requirements, product standards, and technology requirements. Since women-owned SMEs represent a larger proportion of exporters to non-US markets (e.g., Europe, India, others) relative to men-owned SMEs, this could explain their perception about logistical obstacles. The lack of financing or cash flow is perceived as an obstacle but to a lesser degree and is less of an impediment than for men-owned SMEs. According to Huang and Rivard (2020), women are more likely than men to be approved for credit but also to be discouraged from borrowing.⁴⁰

Table 14.1 Exporting SMEs that considered these obstacles as moderate or major when exporting (%)

	Women-owned	Equally owned	Men-owned	All SMEs
Logistical	23.9	19.1	18.6	19.5
Border	21.7	16.8	17.2	17.8
Foreign administration	19.2	20.7	14.3	16.3
Financial risk	10.7	15.5	15.8	14.9
Marketing knowledge	10.8	15.8	13.5	13.5
Lack of financing or cash-flow	9.3	9.6	14.3	12.7
Domestic administration	11.5	7.6	10.0	9.7
IP issues	3.3	2.3	6.6	5.3
Other	5.5	12.8	9.1	9.3

Data: Statistics Canada, Survey on Financing and Growth of Small and Medium Enterprises, 2017.

Source: Office of the Chief Economist, Global Affairs Canada; and see Julia V. Sekkel, ‘Women-Owned SMEs and Trade Barriers’ (2020) <www.international.gc.ca/trade-commerce/economist-economiste/analysis-analyse/women_owned_smes_trade-pme_commerce_appartenant_femmes.aspx?lang=eng>

Other research has shown that women-owned businesses around the world also face other challenges, such as lack of financing or violence and harassment at border crossings, which can affect their ability and willingness to participate in trade.⁴¹

14.3.2 Element 2: Ex ante Economic Impact Assessment

In order to produce an Economic Impact Assessment (EIA) of potential FTAs, the Office of the Chief Economist at Global Affairs Canada has employed a Computable General-Equilibrium (CGE) model for many years. A CGE model is a mathematical representation of the structure of the economy and the behavioural response of firms, households, and the government. The model includes different countries and regions of the world with which Canada trades. Such a model provides for a simulation as opposed to a forecast. It allows for a comparison between a base case scenario (i.e., the current economy and trade) and a scenario based on what the economy would look like once the policy shock has been implemented and time has allowed the economy to adjust. Here, the policy shock is a new trade agreement which can be incorporated in phases in the model to account for immediate and gradual tariff reduction. The difference between these two states is the impact of the shock.

The impact of a new FTA comes from changes in factor prices and allows a country to reallocate its resources from sectors where there is a comparative advantage. An improved allocation of resources in the economy provides for a more efficient outcome, hence a better economic outcome globally.

However, a more efficient allocation of resources does not automatically mean more employment. An increase in production in a specific sector might be achieved through an increase in capital, not labour. It is also possible that an increase in production in another sector is achieved through an increase in labour. In an economy where labour markets operate freely, changes in output in expanding sectors would result in more employment in that sector, to the detriment of sectors that are contracting. Hence, the overall impact on employment could seem to be small.

In light of the desire to assess if and how a free trade agreement would impact men and women differently, the Office of the Chief Economist at Global Affairs Canada expanded its existing modelling capacity to include a newly developed labour market module. The model follows the structure of the Global Trade Analysis Project (GTAP) model developed and supported by Purdue University,⁴² but has been expanded to include a labour market with some friction. This expanded model takes into account the potential impacts on gender, age, and the distribution of Canadian workers across eight different occupational groups and sixty-five sectors of the economy.

The labour module allows for substitution between workers of different age groups, substitution between men and women, and between occupations. The friction in the labour market means that, at any point in time, there is no longer full employment. Rather, changes occur in unemployment and movements in and out of the labour market for men and women separately. Trade liberalization can generate both smooth job transitions and involuntary unemployment as some firms expand, while others are forced to cut back output and reduce their workforce in response to a loss of market share due to imports. Further, trade liberalization could also have an impact on labour force participation: higher real wages and associated job creation may encourage those who are not in the labour force to seek work.

Canada used its CGE model to assess the potential impacts of trade liberalization under the proposed Canada–Mercosur FTA. This model allowed Canada to look at new dimensions such as the potential impacts on overall employment, employment by gender, employment by age groups, or employment by occupation. For the purpose of this analysis, complete elimination of tariffs is assumed between Canada and the four Mercosur countries, with no exception made for ‘sensitive products’.

Based on full implementation of the agreement, the results on the Canadian economy by 2040 suggest that the benefits could be widely shared from an inclusive trade perspective.⁴³

Under the potential Canada–Mercosur FTA, the sectors projected to add the most jobs would be in services and domestic trade. Given that there is a higher proportion of women workers in these sectors, the Agreement would generate a disproportionately larger demand for female workers. Accordingly, the overall demand for female workers would increase by 4,489, compared to a net increase of male employment of 4,086.

The potential FTA could lead to an expansion in participation of the Canadian labour force by attracting workers from the non-participating working-age population and distributing the income gains more widely. Further, the increase would be moderately weighted in favour of women, which shows that this FTA would benefit women and improve gender equity.

The findings from the EIA suggest that enhancing economic cooperation in the form of an FTA between Canada and Mercosur countries is desirable, and would generate economic benefits for both economies, including positive effects for underrepresented groups in Canada’s economy.⁴⁴ The expansion of trade between Canada and Mercosur countries would drive economic gains, generate jobs and promote gender balance in the Canadian economy, and encourage youth employment and greater labour participation. All these effects would support a broader sharing of the benefits of the Agreement, including amongst traditionally underrepresented groups in the economy and trade.⁴⁵ Unfortunately, it is not possible to evaluate the similar impacts on the other negotiating parties. The CGE model used only has the extension for the Canadian labour market due the availability of extensive gender-disaggregated data.

Canada has also used this methodology in its EIA of the CUSMA.⁴⁶ The implementation of the CUSMA outcome secures GDP gains of $6.8 billion (USD 5.1 billion), or 0.25 per cent, which would have been lost if the United States had withdrawn from NAFTA.⁴⁷ From a labour perspective, CUSMA can secure nearly 38,000 jobs that would otherwise be lost while preserving real wage gains for Canadian workers, particularly machinery operators, manual labourers, and sales workers. From a gender perspective, the jobs secured are expected to be almost evenly split between men and women (18,708 jobs held by men that were preserved and 18,853 jobs held by women that were preserved).⁴⁸ Overall, these outcomes could have a positive impact on middle-class jobs and improve income equality in Canada.

14.3.3 Element 3: Ex post Analysis

In order to study the long-term impacts of an FTA on labour market outcomes, leading researchers⁴⁹ have used longitudinal employer–employee data from Canada for the years 1984–2004. The employment of workers employed in 1988 in industries affected by tariff reductions was followed and the long-run effects of the CUSFTA⁵⁰ was examined on labour market outcomes including cumulative earnings, and whether the worker was more likely to be separated from their initial employer, leave their initial industry, or experience periods of unemployment. The longitudinal nature of the data allowed for the examination of these trajectories in detail while controlling for pre-existing conditions and trends for affected workers.

The study also provides results by gender to assess how the CUSFTA might have differentially affected labour market outcomes for women, including workforce separations and lifetime earnings. The main findings related to gender impacts of the CUSFTA are as follows: (i) among low-attachment workers,⁵¹ men have lower lifetime earnings overall with a larger effect on earnings at the initial employer while women have experienced no discernible effects; (ii) men and women have benefited equally from US concessions, particularly with respect to strong positive effects on earnings at the initial employers; (iii) for high-attachment workers,⁵² women have benefited from Canadian concessions, with much of the effect coming from earnings at the initial employer while for men there is no effect of Canadian concessions on either type of income.

These results show that workers can be affected in many different ways, depending on their attachment to the labour market, the sector in which they operate, and how the sector is affected by concessions. It also shows that indirect but positive benefits can be found in the long run. An FTA that stimulates the economy overall can also stimulate in a positive way sectors of the economy not directly affected by concessions. Prospects in sectors that are less trade-intensive such as retail trade and some services can improve and provide for better conditions overall.

14.3.4 Element 4: Dynamic GBA Plus

The gender impact assessment of the Canada–Mercosur FTA was conducted using gender-based analysis plus (GBA Plus).⁵³ GBA Plus is an analytical process used by the Government of Canada to assess how domestic and international policies, programmes, initiatives, organizations, and activities may affect diverse groups of women, men, and non-binary people.⁵⁴ The plus of GBA Plus aims to ensure that policymakers consider other overlapping identity factors of the Canadian population such as Indigeneity, race, ethnicity, culture, religion, immigration status, disability, age, sexual orientation, and geographic region of residence (urban, rural, remote, coastal, or northern) when they are developing policy. The aim behind this approach is to put people at the heart of decision-making and ensure that policies do not perpetuate or exacerbate existing inequalities. Applying the GBA Plus analytical framework to trade policy and an ongoing FTA negotiation is breaking new ground and realizing value-added benefits to the negotiations. GBA Plus is in fact changing the way Canada does trade policy.⁵⁵

14.3.4.1 Overview of GBA Plus

Canada is conducting a GBA Plus on each of the twenty-five chapters⁵⁶ currently under negotiation as part of the potential Canada–Mercosur FTA. This requires that the lead negotiators of these chapters conduct an analysis on the potential GBA Plus effects and opportunities associated with each chapter’s provisions.

Supported by a custom-designed questionnaire to guide them in their analysis, lead negotiators were tasked to consider a range of effects (positive and negative, direct and indirect, intended and unintended) associated with their chapters’ provisions on various industries and sectors of the economy, as they related to men and women performing various roles – such as workers, business owners, entrepreneurs, and consumers. They were also asked to consider any different effects of the chapter on men and women based on other intersectional characteristics, with Indigeneity and SMEs as priority issues to consider, and any other relevant considerations which might arise and for which data or other evidence were available. They were asked to consider how they could mitigate a negative effect or enhance a positive opportunity through a new trade policy provision in their chapter. In addition, lead negotiators were asked to regularly update their GBA Plus before each round of negotiations with Mercosur by integrating information on progress to date, adding new data and evidence as it is identified, and analysing these inputs to reveal findings to inform the negotiation strategy through the development of new provisions. This process is ongoing (at the time of this writing), and the GBA Plus continues to be updated as Canada tables new provisions in negotiations with Mercosur. GBA Plus is a dynamic process which is continually realizing benefits to the negotiations and allows for tabling of new provisions in real time. With the help of the findings collected through this process, to date fifteen of twenty-five chapters in its negotiations with Mercosur have presented opportunities for Canada to propose at least one new inclusive or gender-responsive trade policy provision.

Canada’s analysis was also informed by the Economic Impact Assessment (see Element 3) and feedback received from a diverse range of stakeholders between September and December of 2018. A summary of the initial GBA Plus for the Canada–Mercosur FTA negotiations was published in August 2019 for public review and comment over a ninety-day period.⁵⁷ A ‘What We Heard’ report was published in June 2020 that summarizes the comments received from stakeholders and experts.⁵⁸ Lead negotiators were subsequently informed of these comments, so they can consider and address them wherever possible.

14.3.4.2 GBA Plus Case Studies

Among others, two chapters in particular present opportunities to integrate inclusive and gender-responsive trade policy provisions in trade agreements: Electronic Commerce and Government Procurement.

Case Study 1: Electronic Commerce

Canada’s model electronic commerce chapter that it has tabled in negotiations aims to facilitate the use of electronic commerce as a means of facilitating trade in goods and services. It enhances the viability of the digital economy by ensuring that impediments to both consumers and businesses embracing this medium of trade are addressed. Canada recognizes that the successful integration of electronic commerce into the global economy is dependent upon the level of trust and confidence businesses and consumers have in the digital environment.

In doing the research to support the GBA Plus, the leads found an OECD study that suggests the use of digital platforms, mobile phones, and mobile money could lead to an overall increase in women’s participation in the economy.⁵⁹ The use of digital platforms may offer women many additional opportunities, including the possibility to overcome challenges related to physical immobility, gain access to new markets and knowledge, enjoy flexible working hours, and supplement their household income. The Organisation for Economic Co-operation and Development (OECD) also notes that the use of digital trade platforms may therefore result in higher female employment rates than in traditional industries or businesses.⁶⁰ The OECD also notes that greater digitalization and cheaper online access can benefit in particular women-owned businesses that tend to be smaller and more vulnerable to downturns in the economy.⁶¹

The GBA Plus also found that Canada’s model FTA chapter on electronic commerce could affect all sectors of the economy that engage in digital trade and may have different effects on men and women operating in the sector. Within the category of ‘electronic shopping’, nearly an equivalent number of men and women are employed in Canada. However, there continues to be a considerable gap in salaries – the average women’s salary is more than 50 per cent below the average salary for men.⁶² In terms of diversity, Indigenous Peoples occupied 2 per cent of jobs within the Canadian electronic shopping sector. Furthermore, an international study of micro, small, and medium-sized enterprises (MSMEs) found that while only 25 per cent of traditional offline businesses are women-owned, women-owned online businesses represent 50 per cent of the total number.⁶³ A growth in electronic commerce will likely also have a positive impact on Indigenous Peoples’ participation in economic activities of various sectors.

The GBA Plus found that electronic commerce has the potential to act as a tool to advance gender equality and close the gender digital divide by facilitating access to international markets for SMEs owned by women, Indigenous Peoples, and other underrepresented groups, such as persons with disabilities and those living in rural, remote, or northern regions of Canada. In this regard, two new e-commerce-related commitments have been advanced to address potential negative effects/risks and leverage positive opportunities for women and other underrepresented groups in the economy and trade, namely:

• a provision in the cooperation article to promote accessibility to information and communications technologies for underrepresented groups/people with specific needs, including women and girls, Indigenous Peoples, and persons with disabilities; and

• a provision in the Personal Information Protection article that commits the parties to ensure that they maintain a domestic legal framework that provides for the protection of personal information of electronic commerce users. (This provision may also be of particular importance to LGBTQI+ communities concerned about protecting their private lives from employer, state, or public scrutiny).

Case Study 2: Government Procurement

Canada’s model government procurement (GP) chapter that has been tabled in negotiations aims to secure preferential access to trading partners’ GP markets, while retaining the necessary domestic policy space to achieve socio-economic objectives. The proposed GP chapter for negotiations with Mercosur contains two sections: the procedural rules laid out in the chapter and the market access commitments listed in the Annexes. The procedural rules, which establish the manner in which GP is conducted, are governed by four core principles: national treatment, fairness, transparency, and accountability. These rules support the primary objective of providing Canadian businesses with an increased ability to access GP opportunities in foreign markets.⁶⁴

The estimated annual value of contracts awarded by Canada’s federal government departments and agencies is about $22 billion, accounting for about 1.2 per cent of GDP.⁶⁵ These procurements occur across all sectors and industries. Considering that Canada’s existing procurement market is generally open to foreign suppliers, any economic effects from the GP chapter would be largely dependent on the value of the market access commitments provided by Mercosur. Canadian suppliers of goods and services would benefit from access to GP opportunities in the Mercosur countries in various areas such as information and communications technology, telecommunications, energy technologies, and environmental goods and services. In doing the research to support the GBA Plus, the lead negotiators found that in Canada, women-owned SMEs are active in all of these sectors and industries, but particularly in environmental goods and services.

In line with these findings, in the Canada–Mercosur FTA negotiations, Canada seeks to mainstream gender equality and inclusivity provisions in the GP chapter. In the GP chapter, the GBA Plus found that there is an opportunity to increase the participation of women- and Indigenous-owned businesses and other SMEs in the GP market in Canada in order to build their capacity and grow their businesses. Canada can seek the inclusion of a provision in its Market Access Schedule to maintain flexibility to take into account socio-economic considerations in procurements so as to increase the participation of these groups in accessing GP opportunities in Canada.

These two case studies show that there are opportunities to advance inclusive and gender-responsive provisions in various chapters. However, while some chapters do not have direct gender-responsive or inclusive trade provisions appearing in the chapter texts, this does not mean that they do not have gender-related benefits. For example, many of the chapters, especially those related to goods, aim to make trade rules transparent and predictable and to reduce costs for businesses; this is especially important for SMEs, in particular for women-owned businesses that tend to be even smaller than men-owned SMEs,⁶⁶ and tend to have a higher proportion of fixed costs as a percentage of expenditures. In addition, while cooperation activities listed in some chapters – particularly those relating to gender, MSMEs, and Indigenous Peoples – advance gender equality, women’s economic empowerment and inclusivity, it will be especially important to effectively implement these activities and demonstrate value-added and positive results over time.

14.3.5 Assessing Canada’s Experience in Respect of the GBA Plus Process

In order to promote sustainable and inclusive economic growth through evidence-based policies, Canada has conducted a quantitative and qualitative assessment of the possible effects on Canadians of the potential Canada–Mercosur FTA. This approach may help deliver a more gender-responsive and inclusive FTA where women realize the benefits and opportunities of trade as much as men do. GBA Plus can help make an FTA a tool to achieve women’s economic empowerment and gender equality outcomes – not only in Canada but also with willing negotiating partners who realize the value of fully integrating women into the economy and trade. In fact, a GBA Plus of trade policies – bilateral, regional, plurilateral, and multilateral – can help achieve not only gender equality outcomes but also sustainable economic development and prosperity for all, consistent with the SDGs that all countries have endorsed.

There are strengths in Canada’s approach of applying GBA Plus to an ongoing trade negotiation. The approach includes both a quantitative and a qualitative dimension, with the former informing the latter. The quantitative side is led by the Office of the Chief Economist at Global Affairs Canada using data from Statistics Canada, and the qualitative side is led by negotiators who know their chapters and are well supported by the Gender Focal Point for trade policy and negotiations. As GBA Plus is applied to a variety of trade policy initiatives, this approach is also proving adaptable to different scenarios – new FTAs, modernizations, and accessions; ex ante and ex post scenarios; and, bilateral, plurilateral, and multilateral contexts. This approach also provides an opportunity for stakeholder feedback and it supports transparency and accountability. When GBA Plus is applied, negotiators are able to table new innovative provisions to address findings in real time at the negotiating table and brief the trade partner on the rationale behind the new proposal, thus building buy-in for the approach and the importance of advancing women’s economic empowerment and gender equality through the FTA. In addition, this approach helps Canada promote alignment with and development of domestic flanking policies as required.

There are limitations in applying GBA Plus to FTA negotiations that are important to recognize. For example, a limitation could be that a GBA Plus finding cannot be addressed through a policy provision in a trade agreement. This would mean that addressing the finding would need to be undertaken by another ministry in the government – beyond the trade negotiators. A close and integrated communication must therefore exist among ministries so that they can work together and develop a coherent domestic policy response to a GBA Plus finding in a trade agreement negotiation. In some instances, it may be necessary for the country applying this process to redesign or develop new domestic policies and programmes to mitigate risks or enhance opportunities. In addition, GBA Plus reveals and confirms what is well known: that trade outcomes that benefit one group (for example, consumers who benefit from lower-priced products) may negatively affect another population segment (for example, workers in an industry that would lose its protection once tariffs are removed). Hence, GBA Plus, while uncovering or confirming this tension, may not necessarily produce an immediate win–win solution. However, it may help identify the population group most at risk so those impacts and implications can be taken into account during negotiations and domestic implementation. Another limitation in the successful application of GBA Plus to FTA negotiations may be the lack of gender-disaggregated data across a range of important variables. This gap, however, should not impede analysis if other evidence can be collected through consultations or case studies. It is important to undertake the GBA Plus work in an iterative way, building skills and knowledge, as the challenges for women are generally/intuitively well-known and further delay for the collection and analysis of data will only make things worse for the women who need support.

While the GBA Plus process applied to an ongoing trade negotiation has some limitations, early benefits have already been realized: it is recognized by Canada’s trade negotiators that conducting GBA Plus on the ongoing Mercosur FTA negotiations has been a valuable undertaking. It is providing trade negotiators with a richer sense of the impacts and effects of FTA provisions on Canadian workers, entrepreneurs, business owners, and consumers; it is helping officials develop in real time and on an ongoing basis new and innovative gender-responsive and inclusive trade policy provisions to address effects and opportunities; it is supporting the continuous strengthening and innovating of Canada’s FTA chapters; and it has effectively informed the FTA negotiation strategy to date.

GBA Plus has also served to highlight data and knowledge gaps that need to be addressed in order to ensure effective GBA Plus of future FTA chapters (for example, indirect employment effects by industry, gender, and other intersectional characteristics; consumer effects). GBA Plus has also highlighted that FTAs do more than seek lower tariffs and increase market access opportunities: FTAs can positively influence a range of factors that affect participation in the economy, such as transparency, cutting red tape, and advancing global norms and standards. The overall benefit of applying GBA Plus to FTA negotiations is that it has the potential to help craft and deliver a more gender-responsive and inclusive trade agreement than ever before.

In terms of ensuring effective GBA Plus of trade agreements on an ex ante basis, there are some key success factors that need to be considered. These include: collection and analysis of substantial gender-disaggregated data across a number of economic and trade variables; capacity to interpret the data in a trade policy context and to develop and implement advanced economic modelling with it; a willingness to move beyond some common assumptions such as that trade is gender-neutral; well-functioning government ministries that consult each other regularly; training and guidance for negotiators on how to conduct GBA Plus of their chapters; and strong internal governance systems to ensure implementation of the GBA Plus policy.

14.4 Concluding Remarks

In the span of a few years, Canada has been able to analyse, develop, and implement changes in its approach to trade policy, in particular as it relates to gender. Canada went from few considerations on gender to specific provisions in CPTPP to dedicated chapters on trade and gender in the Canada–Chile and Canada–Israel FTAs, to a full GBA Plus assessment for the ongoing Canada–Mercosur FTA, and can undertake this approach, with any necessary modifications based on learning, in all future FTA negotiations, including with ASEAN, Indonesia,⁶⁷ United Kingdom,⁶⁸ and Ukraine.⁶⁹

A better understanding of women-owned SMEs’ participation in international trade and the barriers they face also allows the Trade Commissioner Service⁷⁰ of Global Affairs Canada to better target their programming activities through the Business Women in International Trade,⁷¹ trade missions tailored to the needs of women entrepreneurs, or through trade promotion activities when new trade agreements come into force. The extension in the analysis to assess potential impacts of a FTA on gender through the labour markets provides a better understanding of the impacts on the labour markets in general and helps in assessing if any adaptation measures are needed in the short or medium term. In the long term, based on evidence from the ex post analysis of the CUSFTA, some sectors can benefit directly from the concessions, others could benefit indirectly because of the overall impact of the economy leading to more activities in other sectors, but some workers in sectors affected might need time to adjust to the new realities.

The dynamic GBA Plus that Canada has piloted with the Canada–Mercosur FTA negotiations has resulted in the identification of opportunities in fifteen of twenty-five chapters to present new, innovative gender-responsive inclusive provisions in real time at the negotiating table to help ensure that women and other underrepresented groups in trade can share more in the benefits of this potential trade agreement. Canada is committed to applying learning from this analysis and negotiations to future trade negotiations bilaterally. There is also an opportunity for Canada to share its experience with trade partners in plurilateral and multilateral contexts. For example, Canada could support the comprehensive application of GBA Plus to the work of the WTO, including its negotiating, reporting, and monitoring functions, as well as implementation of agreements. This would help deliver on the commitments that WTO members made in December 2017 in the Buenos Aires Declaration on Trade and Women’s Economic Empowerment⁷² at the WTO 11th Ministerial Conference (MC11).

There is no doubt that Canada has made great progress, but it is just the start of the journey. It continues to try to understand better how trade affects other underrepresented groups such as Indigenous Peoples, new immigrants, and visible minorities. As it understands better the linkages between trade and gender, Canada is committed to refine its approach.