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;Footnote 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.Footnote ²⁹ These structural aspects of gender and trade have been comprehensively assessed;Footnote ³⁰ they inform how gender is incorporated into trade agreements, and they impact the degree and depth of commitments.

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’.Footnote 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.Footnote 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’).Footnote 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.Footnote 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.Footnote ³⁵

Notably, two of the AfCFTA’s protocols also contain gender-related provisions.Footnote 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’).Footnote 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’.Footnote 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.Footnote 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).

Yet, despite these innovations, the AfCFTA’s provisions on gender merely scratch the surface,Footnote 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.Footnote 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.Footnote 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).Footnote 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.Footnote 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),Footnote 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.Footnote 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.Footnote 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.Footnote ⁴⁸

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,Footnote ⁶¹ and women have faced considerable disruptions in respect of both goods and services work due to the COVID-19 pandemic.Footnote 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.Footnote ⁶³ Tourism services, which are dominated by women, were also hit particularly hard during the pandemic.Footnote ⁶⁴

Overall, women are increasingly involved in services, ranging from retail and financial services to tourism and hospitality, to health care,Footnote 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.Footnote 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).Footnote ⁶⁷ While informal work can sometimes be more flexible, it can also offer little security and room for advancement.Footnote ⁶⁸ Within the informal sector, migrant women face some of the most significant challenges, as the pandemic has underscored.Footnote ⁶⁹ The immense challenge of addressing trafficking of women and girls remains as well,Footnote 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’,Footnote 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.Footnote ⁷² In terms of border measures, although the WTO Trade Facilitation AgreementFootnote ⁷³ (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.Footnote ⁷⁴ Women traders also often lack information on cross-border regulations and procedures,Footnote ⁷⁵ putting them at a disadvantage vis-à-vis larger businesses and subjecting them to delays at border crossings.Footnote 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).Footnote 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.Footnote 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,Footnote 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’).Footnote 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.Footnote 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’,Footnote 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,Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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’.Footnote ⁸⁸ Going forward, these mechanisms could increasingly be approached from a gender perspective,Footnote 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),Footnote ⁹⁰ as well as a number of RTAs.Footnote ⁹¹ Some areas of focus could include using designated contact points or enquiry points and formal and informal dialogue structures,Footnote ⁹² approached in a gender context.

• The AfCFTA could also build upon trade facilitation provisions and the STRs to address women’s needs,Footnote 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,Footnote 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,Footnote ⁹⁵ as well as trends in African domestic law.Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote ¹⁰⁰ When combined with strict financial sector loan conditions, high interest rates,Footnote 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.Footnote 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,Footnote 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.Footnote ¹⁰⁴

• Some African states, including Burundi, Egypt, Nigeria, and Zambia, have put in place policies that promote financial inclusion and gender-inclusive finance,Footnote 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.Footnote 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.Footnote ¹⁰⁷ Although women stand to gain significantly from digital trade, they are also particularly affected by the digital divide.Footnote ¹⁰⁸ Information and Communication Technology (ICT) and financial services, including online payments services, could be better leveraged by women entrepreneurs and traders.Footnote 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,Footnote ¹¹⁰ namely UN SDG 5 and Target 5.b: ‘Enhance the use of enabling technology, in particular ICT, to promote empowerment of women.’Footnote 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,Footnote 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)Footnote ¹¹³ includes specific language that emphasizes digital inclusion for indigenous communities, women, rural populations, and low socio-economic groups.Footnote 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.’Footnote 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.Footnote 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.Footnote ¹¹⁷

• African national policies and rules on financial digital inclusion, such as those in Mozambique, Madagascar, Tanzania, and Zambia,Footnote 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’.Footnote ¹¹⁹ Within African regional law, the ECOWAS data protection rules reference human rights and ‘fundamental liberties’ of the data holders,Footnote 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.Footnote 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,Footnote ¹²² and, of course, the SDGs.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote 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.Footnote 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.Footnote ¹³⁷ However, while consultation, cooperation, and capacity-building provisions are important,Footnote 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.Footnote 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,Footnote ¹⁴⁰ a proposal that would support many of the options discussed in this chapter.

11.2.1 CARICOM Trade Profile

The group of countries of the CARICOMFootnote ¹ comprises small island developing states (SIDS)Footnote 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),Footnote 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).Footnote 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.Footnote 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.Footnote 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.Footnote ⁷

Although most countries in the region have evolved out of agriculture-based economies,Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ¹³ In comparison, the Caribbean recorded a 60 per cent decline in tourist arrivals and 60 per cent reduction in receipts from tourism.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote ²⁰ and an estimated 87 per cent of employed women in Caribbean small states are involved in the services industry.Footnote 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.Footnote ²² Travel comprised 80 per cent of CARICOM’s total service exports in 2018,Footnote ²³ with the largest regional service exporters being the Dominican Republic, Trinidad and Tobago, the Bahamas, Jamaica, and Barbados.Footnote ²⁴ Women continue to occupy lower paid positions in that sectorFootnote ²⁵ and are particularly susceptible to external shocks. For instance, according to one study by the Economic Commission for Latin America and the Caribbean,Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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 formalizationFootnote ³⁴ translating into the benefits of a well-resourced contributory social protection system for them individually.Footnote 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.Footnote 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.Footnote ³⁷ In Trinidad and Tobago, 32 per cent of households are headed by women.Footnote ³⁸ Women’s roles as primary caregivers means they are often responsible for food, security, and nutrition.Footnote 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.

11.3.1 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;Footnote 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,Footnote ⁴¹ poor integration of women’s leadership in organizations, unemploymentFootnote ⁴² and inadequate access to resources, lack of formal recognition of unpaid care work burdens,Footnote ⁴³ lack of state-supported measures to address the burden of unpaid care such as robust parental leave policies or subsidized child-care,Footnote ⁴⁴ and low numbers of women entrepreneurs.Footnote 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’.Footnote 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)Footnote 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.Footnote 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.Footnote 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.Footnote 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 ProgramFootnote ⁵¹ and the European Union and United Nations Spotlight Initiative.Footnote 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.Footnote 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.Footnote 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.

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.Footnote 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.Footnote 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.Footnote ²⁷ Further, analyses show that current Mercosur international trade patterns tend to benefit male-oriented sectors, and do not contribute to women’s employment.Footnote 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.Footnote 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 MandateFootnote ³⁰ 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 DeclarationFootnote ³¹ referred to the contribution of the gender perspective for the fulfilment of the 2030 United Nations’ Agenda for Sustainable Development Goals (UN SDGs).Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ³⁸

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.Footnote ⁶¹

It must be stated that the five agreementsFootnote ⁶² 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.Footnote 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,Footnote 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,Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ⁶⁹ The GTAGA states that each participant will designate a contact point for trade and gender to coordinate the implementation of this arrangement.Footnote 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.Footnote 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.Footnote ⁷²

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),Footnote ⁴² for example, contains a reservation wherein New Zealand reserves the right to regulate in the area of social services, including childcare.Footnote ⁴³ Childcare challenges pose a significant barrier to work, especially for mothers, who disproportionately take on unpaid responsibilities when they cannot find affordable childcare.Footnote 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 FTAFootnote ⁴⁵ and the South Korea–Central America FTA.Footnote 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.Footnote 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 ZealandFootnote ⁴⁸ 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.Footnote 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,Footnote 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).Footnote ⁵¹ Section 160 stipulates four cases in which the Director-General (DG)Footnote 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,Footnote 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,Footnote 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’.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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 ReportsFootnote ⁶¹ or World Bank’s Women, Business and the Law Reports.Footnote 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 – SealsFootnote ⁶³ 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.Footnote 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.Footnote 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.Footnote 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.’Footnote 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.Footnote 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).Footnote 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).Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.

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 1989Footnote ⁷ and then the North American Free Trade Agreement (NAFTA) in 1994.Footnote 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.Footnote ⁹ Following the entry into force of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) on 30 December 2018,Footnote 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.Footnote 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.Footnote ¹²

Informed by these developments, Canada is pursuing an inclusive approach to trade as part of its overall export diversification strategy.Footnote 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 CPTPPFootnote ¹⁴ and in the Canada–United States–Mexico Agreement (CUSMA or USMCA).Footnote 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.Footnote ¹⁶

Building on these successes, Canada has successfully advanced inclusive trade provisions in its modernized FTAs with Chile (2019)Footnote ¹⁷ and Israel (2019),Footnote 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,Footnote ¹⁹ Trade and SMEs,Footnote ²⁰ and Trade and Climate Change.Footnote 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)Footnote 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.Footnote 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.Footnote 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.Footnote 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.

14.3.1 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 economyFootnote ³¹ and employ over 1.5 million people.Footnote 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 SMEsFootnote ³³ in Canada, and only 11 per cent of them export.Footnote ³⁴

Using data from Statistics Canada’s Survey on Financing and Growth of Small and Medium Enterprises (2011, 2014, 2017), a study by Bélanger BaurFootnote ³⁵ 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,Footnote 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.Footnote 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),Footnote 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).Footnote 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.Footnote ⁴⁰

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.Footnote 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,Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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).Footnote 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 researchersFootnote ⁴⁹ 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 CUSFTAFootnote ⁵⁰ 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,Footnote 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,Footnote 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).Footnote 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.Footnote 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.Footnote ⁵⁵

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.