Human Rights, Trade and Investment
The global trade and investment regime has a profound impact on human rights, given that the promotion of economic growth in itself may not lead to inclusive, sustainable and equitable development outcomes. General Assembly resolution 67/171 affirms human rights as a guiding consideration for multilateral trade negotiations. The resolution calls for mainstreaming of the right to development and strengthening of the global partnership for development within international trade institutions.
Trade and investment regimes also overlap and interface with intellectual property, transfer of technology, climate change, and energy regimes and any evaluation must address the impacts of regime convergences, divergences and intersections on the realization of human rights.
A human rights-based approach to trade and investment entails considering how States’ obligations under trade/investment law agreements might impact on their ability to fulfil their human rights obligations; what measures States and other actors should be taking to ensure positive impacts and avoid negative impacts; and consideration of action that is required to mitigate against any negative impacts that do occur. To achieve this, we must aim to transform existing systems of international trade and investment from engines of economic growth into a multi-purpose framework for the promotion of holistic, people-centred development.
There has been widespread criticism of, and mobilization against, trade agreements and investment treaties, particularly given governments’ orientation to focus exclusively on commercial interests in negotiations without taking into account their obligations to address human rights, the environment and development. A wide range of case studies indicate that pressures from international trade and investment rules to open borders for goods and services, to create a “business-friendly” environment for foreign direct investment and to strengthen intellectual property rights have often contributed to undermining the protection and realization of human rights.
The triple global crises of high and volatile food prices, climate change and financial turmoil have heightened public scrutiny of the international economic order. As a result, there is a growing interest and commitment by civil society and by some governments to assess the social and human rights implications of trade and investment policies and agreements – both multilateral and bilateral − including through the use of human rights impact assessments (HRIAs).
Considerable efforts need to be made to articulate to all constituencies, in particular the World Trade Organization and other actors engaged in the areas of trade and investment of the added value of human rights, including right to development, and its application, the importance of policy coherence taking into account human rights obligations, standards and principles, the need for human rights impact audits and assessments, flexibilities and exemptions such as in TRIPs, and remedies.
Scoping Study: Designing the Continental Free Trade Area (CFTA): An African Human Rights Perspective- Prof. James Thuo Gathii, May 2016
The Office of the High Commissioner for Human Rights (OHCHR), along with the Economic Commission for Africa (ECA) and the Friedrich-Ebert-Stiftung (FES), Geneva Office are supporting an ex-ante Human Rights Impact Assessment (HRIA) of the CFTA. The scoping study identifies three potential risks in the CFTA negotiations and three proposals are made with regard to institutional and structural mechanisms for monitoring, remedies and social protection under the CFTA. The risks identified relate to agriculture and food security, employment and social protection and freedom of movement,
Following the scoping study, efforts are being made to undertake a deeper analysis of the risks and complete the HRIA by end 2016.
OHCHR Thinkpiece: A Turn to Responsible Contracting: Harnessing Human Rights to Transform Investment, January 2016
Prepared for the E15 Task Force on Investment Policy: Strengthening the Global Trade and Investment System for Sustainable Development
The focus of this paper is on infusing ethical and normative objectives and processes into state-investor contracts and ways human rights, in particular, can be incorporated. It takes, as a starting point, the “Principles for Responsible Contracts – Integrating the Management of Human Rights Risks into State-Investor Contract Negotiations” (the Principles), developed by John Ruggie during his mandate as Special Representative of the UN Secretary-General on the issue of human rights and transnational corporations and other business enterprises and examines other model agreements that provide further guidance on how to devise state-investor contracts to address potential human rights impacts.
See also the E15Initiative website.
Multi-stakeholder expert workshop on a potential Human Rights Impact Assessment (HRIA) of the Continental Free Trade Area in Africa (2015-2017), 16-17 April 2015, UNECA Conference Centre, Addis-Ababa, Ethiopia
This workshop aimed to explore possible ways to conduct a human rights impact assessment (HRIA) of the Continental Free Trade Area (CFTA) in Africa on which negotiations will begin in 2015. The meeting featured the discussion of an issues paper that was prepared by Office of the High Commissioner for Human Rights (OHCHR), and an elaboration of future steps in the HRIA process. The meeting was organized jointly by the OHCHR, the United Nations Economic Commission for Africa (UNECA) and Friedrich‐Ebert‐Stiftung (FES). At the conclusion of the meeting, it was decided that UNECA would coordinate a steering group and that as a next step OHCHR would lead a scoping assessment as part of a HRIA of the CFTA. Recommendations have also been made by workshop participants on how to ensure transparency and participation in the CFTA negotiations and this has been formally transmitted by UNECA to the African Union Commission (AUC).
17-18 September 2014: “Making the Right Impact?”- OHCHR/FES Expert Workshop on Evaluating Human Rights Impact Assessments (HRIAs) in Trade and Investment Regimes, Bogis-Bossey, Geneva
15 October 2014: UNCTAD World Investment Forum 2014 - Human Rights and Investment Policy Making: Relevance and Integration, OHCHR-UNCTAD Symposium on Business and Human Rights, Geneva
Recent normative developments, including the UN Guiding Principles on Business and Human Rights (UNGPs), specify that government and market actors have respective duties and responsibilities to safeguard human rights in the context of all business activity, including investment. Nevertheless, understanding how human rights are relevant to investment and what that implies for investment policy making is still nascent. In fact, while there is a flurry of activity directed towards bringing company practice in line with the UNGPs, a serious gap exists with respect to government policy making. Few efforts, if any, consider what the UNGPs imply for investment policy making, including in particular international investment agreements (IIAs) and State-investor contracts given the differentiated duties and responsibilities of governments and companies for human rights.
While UNCTAD’s Investment Policy Framework for Sustainable Development (IPFSD) is a welcome starting point in this regard, more work is required to distill the meaning and implications of the UNGPs for a range of governmental and market actors.
October 2014: UNCTAD World Investment Forum 2014 - Reforming the International Investment Regime
At the 2014 International Investment Agreements (IIA) Conference more than 50 high-level representatives from governments, including ministers, as well as senior business representatives, international and civil society organizations, as well as a large audience, convened in Geneva to address the challenges arising from IIAs and to consider ways to reform the IIA regime. Speakers shared their experiences and developed suggestions for improving global investment governance. They identified pressing issues in IIAs and investment dispute settlement that need to be addressed and ways and means to do this. The focus was on finding concrete and workable solutions. In so doing, the meeting sketched the contours of a roadmap for reform of the IIA regime and called upon UNCTAD to provide a multilateral platform for engagement on investment policy issue and work with other stakeholders to further design this roadmap.
September 2010: UNITAR High Level Panel on Human Rights and Trade
The former High Commissioner joined Pascal Lamy, the former Director-General of the World Trade Organization (WTO), senior diplomats and trade officials as well as experts from academia and civil society at an event organized by the United Nations Institute for Training and Research (UNITAR) in Geneva to discuss the linkages between trade and human rights.