Secret negotiations on trade treaties, a threat to human
rights – UN expert
GENEVA (23 April 2015) – The Independent Expert on the
promotion of a democratic and equitable international order, Alfred de Zayas,
expressed Thursday his deep concern over the general lack of awareness on the
adverse effects that existing, or under negotiations, bilateral and
multilateral free trade and investment agreements have on the enjoyment of
human rights in many countries, particularly in the developing world.
“I am 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.
Proactive disclosure by governments, genuine consultation
and public participation in decision-making are indispensable to make these
agreements democratically legitimate.
“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.
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.
Human rights impact assessments should 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 (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.
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.
The apparent lack of independence, transparency and
accountability of ISDS tribunals also entails a violation ( prima-facie) of the
fundamental principle of legality laid down in international human rights law,
including article 14 of the 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. The establishment of parallel systems of
dispute settlement and their exemption from scrutiny and appeal are
incompatible with 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 bi-lateral 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.
Article 103* of the Charter clearly stipulates that
provisions of free trade and investment agreements as well as decisions of ISDS
arbitrators must conform with the UN 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. 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.”
ENDS
* Article 103 of the Charter stipulates 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.”
Alfred de Zayas
(United States of America) was appointed as the first Independent Expert
on the promotion of a democratic and equitable international order by the Human
Rights Council, effective May 2012. He is currently professor of international
law at the Geneva School of Diplomacy. Mr. de Zayas practiced corporate law and
family law in New York and Florida. As a Human Rights Council’s mandate holder,
he is independent from any government or organization and serves in his
individual capacity. Learn more, log on to: http://www.ohchr.org/EN/Issues/IntOrder/Pages/IEInternationalorderIndex.aspx
The Independent Experts are part of what is known as the
Special Procedures of the Human Rights Council. Special Procedures, the largest
body of independent experts in the UN Human Rights system, is the general name
of the Council’s independent fact-finding and monitoring mechanisms that
address either specific country situations or thematic issues in all parts of
the world. Special Procedures’ experts work on a voluntary basis; they are not
UN staff and do not receive a salary for their work. They are independent from
any government or organization and serve in their individual capacity.
For more information and media requests , please contact Mr.
Thibaut Guillet (+41 22 917 93 89 / tguillet@ohchr.org ) or write to
ie-internationalorder@ohchr.org
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