GENEVA (17 September 2015) – United Nations Independent
Expert Alfred de Zayas today urged the UN system and Governments across the
world to radically reform the international investment regime by putting an end
to free trade and investment agreements that conflict with human rights treaty
obligations. In his full-length report* to the Human Rights Council, he also
called on States “to conduct human rights, health and environmental impact
assessments before and after entering into bilateral and multilateral investment
agreements.”
“Over the past decades free trade and investment agreements
have had adverse impacts on the enjoyment of human rights by interfering with
the State’s fundamental functions to legislate in the public interest and
regulate fiscal, budgetary, labour,
health and environmental policies,” said Mr. de Zayas, the first UN Independent
Expert on the promotion of a democratic and equitable international order.
In his report the expert deplores the paradox resulting from
assuming conflicting treaty obligations. “States that ratify human rights
treaties also enter into agreements that prevent them from fulfilling their
human rights obligations. Revision of the investment treaties must ensure that
in case of conflict, human rights prevail,” he noted.
“In the light of widespread abuse over the past decades, the
Investor-State Dispute Settlement mechanism, which accompanies most free trade
and investment agreements must be abolished as contra bonos mores, because it
encroaches on the regulatory space of States and suffers from fundamental flaws
including lack of independence, transparency, accountability and
predictability,” he stressed.
In his report, the expert observes that: “This dispute
settlement mechanism has mutated into a privatized system of ‘justice’,
incompatible with article 14(1) of the International Covenant on Civil and
Political Rights, whereby three arbitrators are allowed to override national
legislation and the judgments of the highest national tribunals, in secret and
with no possibility to appeal. This constitutes a grave challenge to the very
essence of the rule of law”.
The human rights expert also reveals in his report that the
population is often not aware of these challenges, simply because it is
excluded from the elaboration and negotiation of these treaties. Parliamentary
adoption must follow public debate and must not be fast-tracked. “All trade and
investment agreements — existing and future — must represent the democratic
will of the people in exercise of their right to public participation,” he
says.
The Independent Expert’s report formulates a ‘Plan of
Action’ with concrete recommendations to States, Parliaments, National Human
Rights Institutions, the Human Rights Council and civil society.
The expert urges the Human Rights Council to systematically
examine the adverse human rights impacts of bilateral and multilateral free
trade and investment agreements, and to refer the clash between the
international investment regime and the human rights regime to the UN General
Assembly for discussion and settlement.
Mr. de Zayas also recommends that the International Court of
Justice issue an advisory opinion clarifying that in case of conflict between
human rights treaty obligations and investment treaties, priority must be given
to human rights. “Moreover those provisions of international investment
agreements that violate fundamental principles of the UN Charter including
State sovereignty and self-determination must be declared invalid under article
103 of the Charter, and eliminated pursuant to the doctrine of severability” he
says.
Additionally, the expert urges the UN system to put
international trade and investment agreements on their agenda, and calls on the
UN Conference on Trade and Development (UNCTAD) to convene a world conference
to revise bilateral and multilateral free trade and investment agreements so as
to make them compatible with human rights treaties.
“This Conference should establish a procedure to facilitate
the orderly phasing out of ISDS and its replacement by an International
Investment Court with permanent judges and appeal chambers, or by requiring
investors to submit themselves to national jurisdictions,” he states.
“It is time to ensure the implementation of national and
international human rights law and to foreclose any attempt through trade and
investment agreements to limit the ability of States to meet their human rights
obligations,” the Independent Expert stresses in his report.
(*) Check the Independent Expert’s full report
(A/HRC/30/44):
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Pages/ListReports.aspx
ENDS
Mr. 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.
Learn more, log on to:
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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
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any government or organization and serve in their individual capacity.
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