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UN expert: UN Charter and Human rights treaties prevail over free trade and investment agreements

GENEVA (17 September 2015) – United Nations Independent Expert Alfred de Zayas today urged the UN system and Governments across the world to radically reform the international investment regime by putting an end to free trade and investment agreements that conflict with human rights treaty obligations. In his full-length report* to the Human Rights Council, he also called on States “to conduct human rights, health and environmental impact assessments before and after entering into bilateral and multilateral investment agreements.”

“Over the past decades free trade and investment agreements have had adverse impacts on the enjoyment of human rights by interfering with the State’s fundamental functions to legislate in the public interest and regulate fiscal, budgetary, labour, health and environmental policies,” said Mr. de Zayas, the first UN Independent Expert on the promotion of a democratic and equitable international order.

In his report the expert deplores the paradox resulting from assuming conflicting treaty obligations. “States that ratify human rights treaties also enter into agreements that prevent them from fulfilling their human rights obligations. Revision of the investment treaties must ensure that in case of conflict, human rights prevail,” he noted.

“In the light of widespread abuse over the past decades, the Investor-State Dispute Settlement mechanism, which accompanies most free trade and investment agreements must be abolished as contra bonos mores, because it encroaches on the regulatory space of States and suffers from fundamental flaws including lack of independence, transparency, accountability and predictability,” he stressed.

In his report, the expert observes that: “This dispute settlement mechanism has mutated into a privatized system of ‘justice’, incompatible with article 14(1) of the International Covenant on Civil and Political Rights, whereby three arbitrators are allowed to override national legislation and the judgments of the highest national tribunals, in secret and with no possibility to appeal. This constitutes a grave challenge to the very essence of the rule of law”.

The human rights expert also reveals in his report that the population is often not aware of these challenges, simply because it is excluded from the elaboration and negotiation of these treaties. Parliamentary adoption must follow public debate and must not be fast-tracked. “All trade and investment agreements — existing and future — must represent the democratic will of the people in exercise of their right to public participation,” he says.

The Independent Expert’s report formulates a ‘Plan of Action’ with concrete recommendations to States, Parliaments, National Human Rights Institutions, the Human Rights Council and civil society.

The expert urges the Human Rights Council to systematically examine the adverse human rights impacts of bilateral and multilateral free trade and investment agreements, and to refer the clash between the international investment regime and the human rights regime to the UN General Assembly for discussion and settlement.

Mr. de Zayas also recommends that the International Court of Justice issue an advisory opinion clarifying that in case of conflict between human rights treaty obligations and investment treaties, priority must be given to human rights. “Moreover those provisions of international investment agreements that violate fundamental principles of the UN Charter including State sovereignty and self-determination must be declared invalid under article 103 of the Charter, and eliminated pursuant to the doctrine of severability” he says.

Additionally, the expert urges the UN system to put international trade and investment agreements on their agenda, and calls on the UN Conference on Trade and Development (UNCTAD) to convene a world conference to revise bilateral and multilateral free trade and investment agreements so as to make them compatible with human rights treaties.

“This Conference should establish a procedure to facilitate the orderly phasing out of ISDS and its replacement by an International Investment Court with permanent judges and appeal chambers, or by requiring investors to submit themselves to national jurisdictions,” he states.

“It is time to ensure the implementation of national and international human rights law and to foreclose any attempt through trade and investment agreements to limit the ability of States to meet their human rights obligations,” the Independent Expert stresses in his report.

(*) Check the Independent Expert’s full report (A/HRC/30/44): http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Pages/ListReports.aspx

Mr. Alfred de Zayas (United States of America) was appointed as the first Independent Expert on the promotion of a democratic and equitable international order by the Human Rights Council, effective May 2012. He is currently professor of international law at the Geneva School of Diplomacy. Learn more, log on to: http://www.ohchr.org/EN/Issues/IntOrder/Pages/IEInternationalorderIndex.aspx

The Independent Experts are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

For more information and media requests, please contact Mr. Thibaut Guillet (+41 22 917 9389 / tguillet@ohchr.org) or write to ie-internationalorder@ohchr.org

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