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Issue #1690      June 24, 2015

UN rights expert denounces secret talks on trade treaties

A United Nations rights expert has expressed deep concern over the general lack of awareness of the adverse effects that existing bilateral and multilateral free trade and investment agreements, or those under negotiation, have on the enjoyment of human rights, particularly in the developing countries.

The UN Independent Expert on the promotion of a democratic and equitable international order, Alfred de Zayas, who is from the United States, said that he is concerned about “the secrecy surrounding negotiations for trade treaties, which have excluded key stakeholder groups from the process, including labour unions, environmental protection groups, food-safety movements and health professionals”.

In a press release the rights expert emphasised that proactive disclosure by governments, genuine consultation and public participation in decision-making are indispensable to making these agreements democratically legitimate.

De Zayas warned that “fast-tracking” adoption of such treaties has a detrimental impact on the promotion of a democratic and equitable world order.

“It is tantamount to disenfranchising the public and constitutes a violation to accepted human rights law, which stipulates that every citizen shall have the right and the opportunity to take part in the conduct of public affairs,” he said.

The expert underlined that there is a general lack of awareness concerning the adverse effects that existing bilateral and multilateral free trade and investment agreements already have on the enjoyment of human rights, including the right to health, the right to education and the right to live in a safe, clean, healthy and sustainable environment.

Investor-state arbitrations

The UN expert called for human rights impact assessments to be urgently undertaken, given the numerous treaties currently under consideration and the potential risk they represent for the enjoyment of human rights.

“I am especially worried about the impact that investor-state arbitrations [also known as investor-state dispute settlement – ISDS] have already had and foreseeably will have on human rights, in particular the provision which allows investors to challenge domestic legislation and administrative decisions if these can potentially reduce their profits,” he said.

The rights expert pointed out that such investor-state tribunals are made up of arbitrators, mostly corporate lawyers, whose independence has been put into question on grounds of conflict of interest, and whose decisions are not subject to appeal or to other forms of accountability.

De Zayas also pointed out that the apparent lack of independence, transparency and accountability of ISDS tribunals entails a violation (prima facie) of the fundamental principle of legality laid down in international human rights law, including Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which requires that suits at law be adjudicated by independent tribunals.

“It has been argued that ISDS tilts the playing field away from democratic accountability, favouring big business over the rights and interests of labourers and consumers,” he said.

The rights expert further underlined that the establishment of parallel systems of dispute settlement and their exemption from scrutiny and appeal are incompatible with the principles of constitutionality and the rule of law, and as such are harmful to the moral welfare of society (“contra bonos mores”).

“Because all States are bound by the United Nations Charter, all bilateral and international treaties must conform with the Charter and its principles of equal rights and self-determination of peoples, respect for human rights and fundamental freedoms, sovereign equality of States, the prohibition of the threat of and the use of force and of intervention in matters which are essentially within the domestic jurisdiction of States.”

According to the rights expert, Article 103 of the UN Charter clearly stipulates that provisions of free trade and investment agreements as well as decisions of ISDS arbitrators must conform with the Charter and must not lead to a violation, erosion of or retrogression in human rights protection or compromise state sovereignty and the state’s fundamental obligation to ensure the human rights and well-being of all persons living under its jurisdiction.

(Article 103 states that “in the event of conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”)

“Agreements or arbitral decisions that violate international human rights law are null and void as incompatible with Article 103 of the UN Charter and contrary to international ordre public,” de Zayas said.

Third World Resurgence

Next article – Young workers – Unite to Fight – Statement by Young Communist League – Sydney

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