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Statement by the Independent Expert on the promotion of a democratic and equitable international order, Alfred de Zayas, on the upcoming signing the Trans-Pacific Partnership

“Trade is not an end in itself, but must be seen in the context of the international human rights regime, which imposes binding legal obligations on States. Trade agreements are not ‘stand-alone’ legal regimes, but must conform with fundamental principles of international law, including transparency and accountability. They must not delay, circumvent, undermine or make impossible the fulfilment of human rights treaty obligations.

I am concerned that notwithstanding enormous opposition by civil society worldwide, twelve countries are about to sign an agreement, which is the product of secret negotiations without multi-stakeholder democratic consultation. The Trans-Pacific Partnership (TPP) is fundamentally flawed and should not be signed or ratified unless provision is made to guarantee the regulatory space of States.

Parliaments have a crucial role in ensuring that ex ante and ex post human rights, health and environmental impact assessments are conducted, and that a procedure for withdrawal from the TPP without ‘survival clauses’ is built into the agreement.

My 2015 report to the Human Rights Council (A/HRC/30/44) explained the major legal problems with this outdated model of trade agreements and I call for a new generation of holistic trade agreements for the 21st century, which would incorporate human rights and development into their provisions. The report contains a Plan of Action that lays out a strategy to achieve trade enhancement without sacrificing human rights and development, and formulates guidelines for their sustainability.

In my 2015 report to the General Assembly (A/70/285), I called for the abolition of Investor-State Dispute Settlement (ISDS) arbitrations as fundamentally imbalanced and unjust, since investors can sue governments whereas governments cannot sue investors before these ad hoc tribunals. Trade and investment disputes can be settled under the rule of law by recourse to national jurisdictions and/or State-to-State mechanisms.

The disturbing experience of the last thirty years of ISDS shows that there has been a serious asymmetry that must not be repeated in any future trade agreement. The options are not to sign the TPP as it stands, as civil society demands, or not to ratify it, which is the responsibility of democratically elected parliaments.

Should the TPP ever enter into force, its compatibility with international law should be challenged before the International Court of Justice (ICJ). Already now, the ICJ could be called upon to issue an advisory opinion stating that in case of conflict between trade agreements and the UN Charter, including its provisions on State sovereignty, human rights and development, it is the Charter that prevails.

Although, observers worldwide oppose the TPP, because of its undemocratic pedigree, in clear violation of articles 19 and 25 of the International Covenant on Civil and Political Rights, and because of the ‘regulatory chill’ that it brings with it – corporate lobbies have now brought the TPP to the table.

If a public referendum were held in all twelve countries concerned, it will be solidly rejected.

On the eve of the gathering of the trade ministers in Auckland, New Zealand, on 4 February 2016, with the purpose of signing the embattled TPP, I call on Governments to issue and interpretative declaration on the arrangement reaffirming the parties’ human rights treaty obligations and their recent pledges to achieve the Sustainable Development Goals.”

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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.