My interview with The Guardian on suspension of TTIP talks over fears of human rights abuses

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UN calls for suspension of TTIP talks over fears of human rights abuses

Link to original article: http://www.theguardian.com/global/2015/may/04/ttip-united-nations-human-right-secret-courts-multinationals

UN lawyer says tactics used by multinationals in courts outside of public jurisdiction would undermine democracy and law

A senior UN official has called for controversial trade talks between the European Union and the US to be suspended over fears that a mooted system of secret courts used by major corporations would undermine human rights.

Alfred de Zayas, a UN human rights campaigner, said there should be a moratorium on negotiations over the Transatlantic Trade and Investment Partnership (TTIP), which are on course to turn the EU and US blocs into the largest free-trade area in the world.

Press Conference by Independent Expert on the promotion of a democratic and equitable international order.

Speaking to the Guardian, the Cuban-born US lawyer warned that the lesson from other trade agreements around the world was that major corporations had succeeded in blocking government policies with the support of secret arbitration tribunals that operated outside the jurisdiction of domestic courts.

He said he would becompiling a report on the tactics used by multinationals to illustrate the flaws in current plans for the TTIP.

De Zayas said: “We don’t want a dystopian future in which corporations and not democratically elected governments call the shots. We don’t want an international order akin to post-democracy or post-law.”

The intervention by de Zayas comes amid intense scrutiny in the US, Europe and Japan of groundbreaking trade deals promoted by Barack Obama. The European commission, which supports the talks, believes an agreement that would lower tariffs and establish basic health and safety standards would boost trade and add billions of euros to the EU’s income. UK ministers estimate Britain could benefit from a rise in GDP of between £4bn and £10bn a year.

Under the proposed agreement, companies will be allowed to appeal against regulations or legislation that depress profits, resulting in fears that multinationals could stop governments reversing privatisations of parts of the health service, for instance.

The investor state dispute settlement (ISDS) scheme that includes the secret tribunals is already a cornerstone of a trade deal between the EU and Canada and is scheduled to be included in the TTIP deal, as well as a trans-pacific deal being negotiated between the US and Japan.

EU officials said the ISDS would be part of the package when it is put to a vote in the EU parliament later this year.

Cecilia Malmström, the European trade commissioner, has sought to dampen criticism by publishing discussion documents submitted to the TTIP talks. Following growing calls from environmental groups, unions and MEPs for the deal to be scrapped, she has put forward a series of suggestions to “safeguard the rights of governments to regulate” and protect public service provision from demands for competition. More than 97% of respondents to an official EU survey voted against the deal.

However De Zayas, the UN’s special rapporteur on promotion of a democratic and equitable international order, said that while these were helpful initiatives, the adoption of a separate legal system for the benefit of multinational corporations was a threat to basic human rights.

Press Conference by Independent Expert on the promotion of a democratic and equitable international order.

“The bottom line is that these agreements must be revised, modified or terminated,” he said.

“Most worrisome are the ISDS arbitrations, which constitute an attempt to escape the jurisdiction of national courts and bypass the obligation of all states to ensure that all legal cases are tried before independent tribunals that are public, transparent, accountable and appealable.

“Article 103 of the UN charter says that if there is a conflict between the provisions of the charter and any other treaty, it is the charter that prevails.”

De Zayas, who issued a statement last month demanding unions, health experts and environmentalists be included in the TTIP talks, conceded that the UN has had little impact on the debate so far, but hoped the publication of his report in August before the EU parliament vote could alert policymakers to the flaws in the current plan.

Disputes have already cost governments hundreds of millions of pounds in compensation. The Swedish nuclear energy group Vattenfall is suing the German government for its decision to phase out nuclear energy following the Fukushima disaster, while the French waste and energy group Veolia sued the Egyptian government when it raised the minimum wage.

“There have been more than 600 such cases and most of them have been decided in favour of the corporations,” he said. “Why? Because the arbitrators are highly paid corporate lawyers, today working for the corporation, tomorrow as advocates, day after tomorrow as lobbyist, the day after that as arbitrators.
“These are classical situations of conflict of interest and lack of independence.”

Photo credit: OHCHR

Video message: Women’s International League for Peace and Freedom (WILPF)

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My video message on the occasion of the WILPF 100 Conference (copy + paste link and open a new window in your browser): https://owncloud.unog.ch/public.php?service=files&t=edce046cb9e42dd4959cd3cfe5a249f6

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Secret negotiations on trade treaties, a threat to human rights – UN expert

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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 of 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.  
 
Pursuant to article 103 of the UN Charter free trade agreements and ISDS arbitrations 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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Photo credit: OHCHR

Independent Expert calls for an end to secret negotiations of free trade and investment agreements until public consultation and participation is ensured and independent human rights impact assessments are conducted

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Independent Expert calls for an end to secret negotiations of free trade and investment agreements until public consultation and participation is ensured and independent human rights impact assessments are conducted

 

GENEVA – The Independent Expert on the promotion of a democratic and equitable international order, Alfred de Zayas, is alarmed by the general lack of awareness concerning the adverse effects that existing bilateral and multilateral free trade and investment agreements have already had on the enjoyment of human rights in many countries, particularly in the developing world.  He is concerned about the secrecy surrounding current negotiations for trade treaties like the Transatlantic Trade and Investment Partnership (TTIP), the Trans-Pacific Partnership (TPP) and the Trade in Services Agreement (TISA), currently under discussion, which have excluded key stakeholder groups from the process, including labour unions, environmental protection groups, food-safety movements and health professionals. The expert maintains that proactive disclosure by governments, genuine consultation and public participation in decision-making are indispensable to render such agreements democratically legitimate.

“Fast-tracking” adoption of such treaties is tantamount to disenfranchising the public.  Therefore, Parliaments should call for a moratorium on all pending free trade and investment agreements until independent human rights impact assessments are conducted and the public is properly consulted. Scarce reports indicate  that these agreements are not about trade facilitation but essentially about deregulation, which is a “lose-lose” proposition for everybody except transnational corporations.

The expert is especially worried about the impact that investor-state-arbitrations (ISDS) may 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 prima-facie violation of 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.

Prior experience has shown that transnational corporations have sued States on account of their social legislation, labour laws, minimum wage provisions, environmental and health protection measures.  Such lawsuits entail a frontal attack on democratic governance, in particular on the exercise of the State responsibility to legislate in the public interest , thus undermining both the commitment to the rule of law and to domestic and international democracy.

The Independent Expert  recalls that because all States are bound by the United Nations Charter, which is akin to a World Constitution, all bi-lateral and international treaties must conform with the Charter, in particular with articles 1, 2, 55 and 56, which stipulate the 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 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.” In other words, provisions of free trade and investment agreements and 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 sovereigntyand the State’s fundamental obligation to ensure the human rights and well-being of all persons living under its jurisdiction.  Such agreements or arbitral decisions are null and void as incompatible with Article 103 of the UN Charter and contrary to international ordre public.

Similarly, universal and regional human rights treaties, including the ICCPR, the International Covenant on Economic, Social and Cultural Rights, the European Convention on Human Rights, the American Convention on Human Rights and the African Charter on Human and Peoples Rights, as well as ILO Conventions on labour standards and WHO Conventions, including the Framework Convention on Tobacco Control (in force 27 February 2005, 168 signatories),the Framework Convention on Climate Change and the Biodiversity Convention must take precedence over trade and investment agreements.

Already in 1989 the European Court of Human Rights held in Soering v. United Kingdom that the obligations under ECHR are superior to those under extradition treaties.  This judicial precedent is mutatis mutandis applicable to free trade and investment agreements.  Moreover, to the extent that free trade and investment agreements lead to gross violations of human rights, mass dislocation and migration, the suicide of ruined and desperate farmers and peasants, usurpation of State sovereignty and subversion of democratic governance, they are contra bonos mores and therefore null and void (Art. 53 Vienna Convention on the Law of Treaties (VCLT), jus cogens; Art. 38 ICJ Statute, general principles of law). Under no condition can ISDS tribunals hinder States in the fulfilment of their fundamental duties to regulate domestic policies in economic, social and labour matters. Arbitration awards and punitive damages assessed against States because of changes in their labour laws (including raising the minimum wage), measures to protect the environment, regulation of toxic waste disposal, public health standards, medical hygiene etc. shock the conscience of mankind, violate the good faith requirement of treaty implementation (art. 26 VCLT), constitute a gross abuse of rights and unjust enrichment.  Ontologically capitalism and investment entail risk-taking.  The progressive improvement of health and social legislation is an important goal of a democratic and equitable international order – and as such a thoroughly foreseeable risk that investors must accept.

Regional Human Rights Courts including the Inter-American Court on Human Rights, the European Court on Human Rights and the African Court on Human and Peoples Rights are called upon to reaffirm the principle that human rights obligations necessarily take precedence over trade and investment agreements.  The UN Treaty bodies, including the Human Rights Committee and the Committee on Economic Social and Cultural Rights, should reaffirm this principle in their jurisprudence on individual cases, in general comments and in concluding observations.

The new Forum on human rights, democracy and the rule of law, created at the 28thsession of the Human Rights Council, could consider devoting its first session to the usurpation of governmental functions by transnational enterprises that have no democratic legitimacy.

The Independent expert calls on the Human Rights Council to systematically review the compatibility of certain provisions of free trade and investment agreements with human rights norms, as part of the UPR procedure.  The Council should also consider tasking its Advisory Committee with a study on the impact of free trade and investment agreements and how to modify them so as to promote rather than hinder human rights.  This would be a logical and necessary continuation of the work on globalization conducted by the Sub-Commission on the Promotion and Protection of Human Rights. Special Procedures mandate holders, including the Working Group on Business and Human Rights, the Special Rapporteur on the Right to Food[1], the Special Rapporteur on the Right to Health, and the Special Rapporteur on the independence of judges and lawyers should consider continuing to pay attention to this issue e.g. by preparing studies on the impacts of such agreements in the context of their mandates.

Finally, the General Assembly should refer pertinent legal questions to the International Court of Justice for advisory opinions and recommendations, including the primacy of human rights treaties over other treaties, the necessity to carry out human rights impact assessments, the responsibility of States to regulate the activities of transnational corporations operating in their territories and the level of compensation owed to victims of violations of human rights.

A moratorium on on-going negotiations is necessary to prevent the establishment of economic and financial structures that foreseeably will lead to gross violations of human rights worldwide and ultimately may lead to situations where international peace and security are threatened.  Special procedures mandate holders have a preventive vocation which is more important than their task to propose curative measures after the fact. We are not just firemen – we are also whistleblowers.

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. Learn more, log on to:http://www.ohchr.org/EN/Issues/IntOrder/Pages/IEInternationalorderIndex.aspx

Epigram: The New World Hotel

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The brave new world of market fundamentalism promises endless progress and seduces many through virtual pleasures, a festival of consumerism, digital gadgets galore, fast lanes and fast tracks to everywhere and nowhere, the illusion of doing more with less.  One day, however, we may wake up with a heavy spiritual hang-over, realizing we have entered the dystopian age of conformism, of mass surveillance and consequent self-censorship, burdened by a sense of not coping with those things that really matter, enveloped by a paralyzing meaninglessness, seemingly unable to escape, condemned to the anesthesizing panem et circensis imposed by the Zeitgeist.  We may think we can check out of the New World Hotel to join the dissident ranks, but it may be too late to exit — because there may not be anywhere for vagabonding misfits to go. 

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