Statement on the Report of the IE on the Promotion of a Democratic and Equitable International Order on the Impact of Trade Agreements
17 September 2015
WILPF welcomes the fourth report of the Independent Expert on the promotion of a democratic and equitable international order. The Independent Expert shed light on the adverse human rights impacts of international trade agreements.
These findings reinforce our conviction on the need to reinstate a balance between States and corporations in the international economic and legal order. It becomes clear that we need to enhance the international legal framework to protect human rights in the context of business operations.
INVESTOR- STATE- DISPUTE- SETTLEMENTS (ISDSs)
Experience has shown that enforcement mechanisms in trade agreements such as investor-to-state arbitration tribunals or dispute settlement mechanisms disproportionately protect corporate interests, while impeding States’ duties to protect human rights. It is unacceptable that States can be sanctioned for millions and even billions, by arbitration tribunals because they are exercising their roles and duties as States to adopt regulations in the public interest, to protect public health or the environment for instance.
On the other hand, States must also take their responsibility when concluding trade agreements and particularly when negotiating arbitration clauses, by taking into account the adverse human rights impacts that these mechanisms may entail. In this regard, we strongly call States to duly consult Parliaments, National Human Rights Institutions and civil society to ensure that such impacts are properly assessed and to ensure democratic control over the conclusion of such agreements.
The experience of the Transatlantic Trade and Investment Partnership between the United States and the European Union has demonstrated that public opinion and civil society demand greater transparency, public consultation and a heightened democratic control over the conclusion of trade agreements that may strongly impact the lives of citizens.
PRIMACY OF INTERNATIONAL HUMAN RIGHTS LAW
International human rights law norms must be treated as superior to other norms, including to international trade agreements. Not only is this reasoning legally founded notably on article 103 of the UN Charter, but it is also an urgent matter to address given the major disproportion of power between corporations and States, as exemplified by recent arbitral cases against States, for instance in the Philip Morris v. Uruguay case or in the Occidental Petroleum v. Ecuador case.
RECOMMENDATIONS TO THE HUMAN RIGHTS COUNCIL AND IGWG ON TNCs AND HR
The UPR procedure of this Council is often used in isolation to the reports of its Special Procedures. We invite States to take into account the negative impact that Trade agreements might have on human rights when issuing recommendations in the UPR procedure. We also respectfully invite the Treaty bodies to conduct such assessments when analysing States’ periodic reports.
To conclude, we believe that the issue of primacy of international human rights norms over trade agreements, as well as the issue of ISDSs should be further inquired and discussed in the context of the Intergovernmental Working Group on a Treaty on Transnational Corporations and Other Business Enterprises With Respect To Human Rights.
These recurrent problems in all trade agreements should indeed be addressed in a structural and universal manner in the context of the prospective treaty on transnational corporations and human rights.
In addition, the realisation of a more democratic and equitable international order also necessitates effective access to justice, remedy and reparations for victims who suffer the adverse human rights impact of free trade agreements for instance, in relation to violations of the right to adequate food or the highest attainable standard of health. An eventual treaty on Corporations with respect to Human Rights should address such access to justice.
Mr de Zayas, how can the eventual treaty on Transnational Corporations and other business enterprises with regards to human rights contribute to establish judicial mechanisms that are more efficient and just than the model of investor-to-state arbitration tribunals?