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.”
* 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.