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Statement of Mr. Alfred-Maurice de Zayas

Independent Expert on the promotion of a democratic and equitable international order

Human Rights Council 33rd Session

Geneva, 13 September 2016


Mr. President,

Distinguished delegates,

Ladies and gentlemen,

Over its first ten years, the Human Rights Council has recorded numerous achievements, notably in connection with the UPR, but also through the creation of thematic and country mandates that have shown added value.  Special procedures mandate holders have presented hundreds of substantive reports with pragmatic recommendations.  Alas, the lack of follow-up to their reports and the chronic non-implementation of recommendations have been a disappointment to victims and put the credibility of the system into question.  States must decide whether the mandates that they created deserve closer attention, questionnaires and communications merit timely and substantive responses, and generally whether the promise of special procedures will be supported with sufficient resources.

States that have been found at fault with respect to the realization of civil, cultural, economic, political and social rights should demonstrate their commitment to the joint venture by giving effect to at least some Rapporteur recommendations.  Hitherto experience shows that most reports are only superficially discussed and then filed away to be forgotten. I take this opportunity to urge civil society to be the champions of Special procedures by giving visibility to our reports and advocating implementation.  People power may yet prove to be the best way to obtain enforcement of human rights treaty obligations and soft-law commitments.

My fifth report to the Council focuses on the impacts of trade on the international order. Already my 2015 reports to the Council and General Assembly give concrete examples of the adverse effects of bilateral investment treaties and free trade agreements on the enjoyment of human rights, particularly in the developing countries, but also in developed countries where the mere existence of investor-state-dispute settlement (ISDS) has generated a severe regulatory chill as I have illustrated in my reports. Let me leave one crucial point in your minds: the present trend to privatize law at the expense of public institutions is an assault on the rule of law and the social contract.

In my reports I have drawn attention to the fundamental problem that although States have binding human rights treaty obligations, they have yet to establish effective enforcement mechanisms. I deplore the paradox that States that ratify human rights treaties, also enter into commercial treaties which delay, undermine or make impossible the fulfillment of human rights treaty obligations. This raises issues of good faith.

My detailed plan of action to the attention of States, Parliaments, civil society, the Human Rights Council, UN agencies and subsidiary organs recommends that the Human Rights Council and the General Assembly work together in submitting pertinent legal questions to the International Court of Justice for advisory opinions on the primacy of human rights treaty obligations over commercial treaties and the primacy of the UN Charter over all other treaties as stipulated in article 103 of the Charter.

An advisory opinion would be an important guide for States when revising or terminating BITS and FTAs, and when entering into new commercial treaties.   Surely trade has contributed to growth in many countries, but unregulated markets have also led to financial crises, massive unemployment, dislocation, the destruction of the agricultural sector in several countries, and an aggravation of the enormous intra-State and inter-State inequality.

The present report focuses on the adverse consequences of the privatization of dispute settlement through the operation of ISDS tribunals and through the recently proposed investment court system (ICS), both of which impinge on the sovereignty and policy space of States and strip entire populations of democratic rights of participation, recourse and remedy.  In matters of such importance, there must be full disclosure by governments, ample consultation of all stakeholders and referenda.

On 20 April 2016, I transmitted, together with six other Special Procedures mandate holders, a communication to all 12 countries that signed the Trans Pacific Partnership, outlining the many procedural and substantive problems associated with this mega treaty, the adverse consequences of which have been amply argued by Nobel laureates, economists, lawyers, health professionals, environmental groups, consumer unions and other stakeholders who essentially were excluded from any meaningful participation in the elaboration and negotiation of the treaty.

On 30 June 2016 a response was received from TPP signatories (except from Canada that provided a separate response on 19 August 2016). Although signatories contend that the TPP will not adversely affect the enjoyment of human rights, there is considerable expert evidence and assessments to the contrary.  My report refers to human rights issues raised by recent arbitral awards including Bilcon v. Canada, a case under NAFTA, which deserve our attention. While I thank the concerned Governments for taking the time to prepare a coordinated response, I am deeply concerned that the response does not address substantially the concerns raised, is weak on legal argument and impregnated with ideological mantras.  Again, this is a classic example of how little human rights matter when lobbies of investors and transnational corporations push against the views of civil society including hundreds of professors of law and economics.  Ultimately, as we have learnt through past experience, denial is not the answer to compelling human rights issues.

Saying “no” to the Trans-Pacific Partnership, the Transatlantic Trade and Investment Partnership, the Comprehensive Economic and Trade Agreement and the Trade in Services Agreement will not have apocalyptic consequences, bring world trade to a grinding halt or make Foreign Direct Investment stop flowing. The world economy before free trade agreements and ISDS was certainly not business-unfriendly and it prospered through a healthy level of trade.

In numerous media statements, I have warned about the lack of democratic legitimacy of commercial treaties that have been elaborated in secret and forced through parliaments without full public debate.  Accordingly, I proposed the use of national referenda in all countries where such treaties are under negotiation.  Furthermore I invited the principal UN organization on trade, UNCTAD, to convene at World Conference with the mandate to revise existing BITS and FTAs so as to make them compatible with human rights treaty obligations.

I take this opportunity to support paragraph 3 of the outcome document of the Fourteenth Session of UNCTAD, held in Nairobi in July 2016.  I quote: “…the role of national policies and development strategies cannot be over emphasized.” Each country has primary responsibility for its own economic and social development, which also needs an enabling international environment.  International cooperation, finance, technology, and capacity building should “support national efforts in line with national priorities and respecting each country’s policy space”. unquotees exploitation and civil society exclusion.

I endorse the important opinions issued by the Deutscher Richterbund – the German professional association of judges – and by Jueces para la Democracia – its Spanish counterpart – both of which reject the recently proposed Investment Court System.  While the idea of replacing ISDS is welcome, the proposed ICS is a poor rebranding exercise, which fails to address most of the fundamental problems of ISDS. One of the greatest achievements of civilization is the establishment of public courts that are transparent and accountable. ISDS and the proposed ICS are neither, as I substantiated before the Parliamentary Assembly of the Council of Europe in April 2016.

Mr, President, ladies and gentlemen

The report before you also reviews WTO rules and practice and criticises the business bias of WTO Dispute settlement panels that, for instance, ruled in 2016 against India’s National Solar Mission.  This illustrates how arcane trade rules are used to undermine governments that support clean energy and local jobs.  The ink was barely dry on the Paris Climate agreement when the WTO panel held that trade can trump concrete action on climate change.

My report reflects on the potential of the World Trade Organization to advance human rights through improved trade rules and a gradual mainstreaming of human rights into its agenda. Yes, trade should promote development, not just in theory, but also in practice.  Yet, in order to achieve results, it will be necessary to take leave from neoliberal mantras of privatization and deregulation of markets and financial flows, ideological constructs that have no basis on empirical evidence.

Allow me to mention several instances of retrogression in human rights which we have recently witnessed.  The Outcome document of the WTO Tenth Ministerial Conference held in Nairobi in December 2015 disappointed many.  The document was elaborated in a non-transparent, non-participatory manner and suffers from grave procedural and substantive deficits.  Reports by many participants complain of the intransigence of a number of States that tried to bury the Doha Development Agenda, notwithstanding the fact that barely three months earlier the UN Summit on the Sustainable Development Agenda committed them to:  “Promote a universal, rules-based, open, non-discriminatory and equitable multilateral trading system under the World Trade Organization, including through the conclusion of negotiations under its Doha Development Agenda.” unquote

That being said, I remain encouraged by what I experienced during the eleventh session of the WTO-Inter Parliamentary Union Conference, held on 13 and 14 June 2016. The outcome document calls on WTO Members to show “Flexibility, openness, inclusiveness and political engagement” as a “key to advancing on all the remaining issues of the Doha Development Agenda.” I wholeheartedly encourage WTO Members to deliver on Doha with the active support of Parliaments.

My report goes on to introduce a new concept that builds on the R2P doctrine.  I call it R2A, the Responsibility of Governments, Parliaments and Courts to Act in the public interest.  This goes well beyond R2P and reflects the ontology of democratic governance. Responsibility to act means breaking with “business as usual” and taking preventive and corrective action to ensure the primacy of human rights, health and environmental protection, and the right to development. CETA, TTIP, TPP and TISA are obstacles to the State’s responsibility to act in the public interest.

Among my recommendations I would like to highlight the following:

States should ensure full disclosure, consultation and public participation on treaties that have major consequences for the public.

States should conduct human rights, health and environmental impact assessments as indispensable components of the negotiation process.

States should obtain the consent of the electorate by conducting referenda.

  • States should cooperate with the inter-governmental working group on the drafting of a binding treaty on corporate social responsibility and adopt it expeditiously.
  • Parliaments should not approve trade agreements without exercising oversight functions and examining the compatibility of the agreements with national constitutions and human rights treaty obligations.
  • WTO should mainstream human rights into all of its activities and issue directives to the dispute settlement panels so that human rights treaties and pledges are not violated.
  • WTO dispute panels should interpret the exceptions in the General Agreement on Tariffs and Trade 1994 to support initiatives on food security, health and the environment and facilitate solutions to climate change. WTO should harmonize policies with the Food and Agriculture Organization of the United Nations (FAO) and OHCHR.

The Human Rights Council should become the international arena where Governments compete to show how to implement human rights most effectively, how to strengthen the rule of law and how to achieve social justice. Competition in human rights performance is the best kind of competition. The Human Rights Council should become the preeminent forum where Governments elucidate best practices in good-faith implementation of pledges, expansive interpretation of human rights treaties and inclusion of all stakeholders. The Human Rights Council must not be a politicized arena where States instrumentalize human rights as weapons to defeat their political adversaries, where human rights are undermined through “side shows”, the “flavour of the month”, or where international law is applied selectively or à la carte.

Finally, I would like to propose to this Council the creation of a mechanism, maybe as part of the UPR, to follow-up on the recommendations by working groups, rapporteurs and independent experts.  Indeed, when the Commission on Human Rights and later the Human Rights Council established special procedures, it was surely not their intention to convene an assembly of Cassandras, whose findings and warnings would be systematically ignored.

I thank all States, inter-governmental organizations, non-governmental organizations and experts that responded to my questionnaires and pay tribute to the competent and devoted staff of the Office of the High Commissioner for Human Rights.

Again, thank you for your attention.