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My report addresses adverse human rights impacts of international investment agreements, bilateral investment treaties and multilateral free trade agreements on the international order, both from the procedural aspect of their elaboration, negotiation, adoption and implementation, and from the substantive side, focusing on their constitutionality and effects on democratic governance, including the exercise of the State’s regulatory functions to advance the enjoyment of civil, cultural, economic, political and social rights. It calls for ex ante and ex post human rights, health and environmental impact assessments, and proposes a plan of action for systemic change.

Alfred de Zayas report

Because all States are bound by the Charter of the United Nations, all treaties must conform with it, in particular with Articles 1, 2, 55 and 56. While recognizing that globalization may contribute to human rights and development, experience suggests that human rights have frequently been subordinated to dogmas of market fundamentalism with a focus on profit rather than sustainable development. Article 103 of the Charter of the United Nations stipulates that “[i]n 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”.

Accordingly, international investment agreements and investor–State dispute settlement agreements must be tested for conformity with the Charter of the United Nations and never undermine the ontological State function to ensure the welfare of all persons under its jurisdiction, nor lead to retrogression in human rights. Conflicting agreements or arbitral awards are incompatible with international ordre public, and may be considered contrary to provisions of the Vienna Convention on the Law of Treaties and invalid as contra bonos mores.

There is an emerging customary international law of human rights reflecting a consensus that human rights provisions in international agreements, including International Labour Organization (ILO) and World Health Organization (WHO) Conventions, constitute an internationally binding legal regime with erga omnes implications. The Independent Expert invites United Nations expert committees, as well as regional human rights courts to reaffirm the precedence of human rights over other treaties. He also invites the General Assembly and United Nations specialized agencies like ILO and WHO to refer pertinent legal questions to the International Court of Justice for advisory opinions. He also invites the Human Rights Council through the universal periodic review and all Special Procedures pursuant to their mandates to review the conformity of these treaties with human rights norms.

Link to my report: http://www.ohchr.org/EN/Issues/IntOrder/Pages/Reports.aspx

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