Trade agreements should mainstream human rights – UN expert urges

13 September 2016 – A United Nations independent expert today called on States and Parliaments to ensure that all future trade agreements stipulate the primacy of human rights and to align existing treaties with the duty of States to fulfill binding human rights treaties and meet environmental and health goals.

“Investors and transnational enterprises have invented new rules to suit their needs, rules that impinge on the regulatory space of States and disenfranchise the public,” the United Nations Independent Expert on the promotion of a democratic and equitable international order, Alfred de Zayas, warned during the presentation of his latest report to the UN Human Rights Council, according to a news release from the Office of the UN High Commissioner for Human Rights (OHCHR).

“In case of conflict, priority must be given to advancing the public interest rather than continuing the current emphasis on profit expectations of investors and transnational corporations,” he added.

“It is high time to mainstream human rights into all trade agreements and World Trade Organization (WTO) rules and regulations, so that trade representatives and dispute-settlers know that trade is neither a 'stand alone' regime nor an end in itself,” he said.

Civil society including consumer unions, health professionals, environmental groups and other stakeholders must be part of the process of elaboration, negotiation, adoption and implementation of trade agreements, Mr. de Zayas said.

“A just, peaceful, equitable and democratic world order must not be undermined by the activities of investors, speculators and transnational enterprises avid for immediate profit at the expense of social and economic progress,” he stressed.

According to the news release, the report introduces the concept of “responsibility to act” or R2A, in the public interest. The R2A reaffirms the ontology of governance and goes well beyond “responsibility to protect” or R2P.

“Governments, Parliaments and Courts must deliver on R2A and not compromise their constitutionally defined roles,” the expert said.

The report illustrates how the investor-state-dispute settlement mechanism, the recently proposed Investment Court System, and the WTO dispute settlement mechanism suffer from systemic business-bias and often fail to consider the human rights impacts in their awards and decisions, the news release said.

Trade treaties, negotiated in secret, have no democratic legitimacy

In his report, Mr. de Zayas also draws attention to the fact that the Comprehensive Economic and Trade Agreement, the Trans Pacific Partnership , the Transatlantic Trade and Investment Partnership and the Trade in Services Agreement have all been negotiated in secret, without consultation of key stakeholders and excluding public participation, thus in violation of articles 19 and 25 of the International Covenant on Civil and Political Rights.

“None of these treaties have any democratic legitimacy,” the expert said, emphasizing that none of them should be allowed to enter into force without public referenda, and if they do enter into force, their legality should be challenged before the constitutional courts of the countries concerned and before the regional human rights courts.

“An advisory opinion by the International Court of Justice reaffirming the primacy of the UN Charter over trade agreements would be instructive,” he said.

Moreover, Mr. de Zayas called for the adoption of a legally binding treaty laying down enforceable obligations by investors and transnational enterprises. A systematic follow up by the Human Rights Council to monitor the implementation of the recommendations of UN working groups, rapporteurs and independent experts is necessary.

Special Rapporteurs and independent experts are appointed by the Geneva-based UN Human Rights Council to examine and report back on a specific human rights theme or a country situation. The positions are honorary and the experts are not UN staff, nor are they paid for their work.


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