Mainstream human rights into trade agreements and WTO practice – UN expert urges in new report

Publish Date: 
Monday, September 26, 2016

The United Nations Independent Expert on the promotion of a democratic and equitable international order, Alfred de Zayas, today called on States and Parliaments to ensure that all future trade agreements stipulate the primacy of human rights. Existing treaties should be revised to ensure that they do not conflict 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”, Mr. de Zayas warned during the presentation of his latest report to the UN Human Rights Council. “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”.

“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 not an end in itself,” he observed. “The WTO yearly ‘public forum’ is slowly but surely contributing to enhanced awareness of civil society concerns. 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.”

“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 added.  

The report introduces the concept of R2A – responsibility to act in the public interest. The “R2A” reaffirms the ontology of governance and goes well beyond the better known “R2P”, Responsibility to Protect. “Governments, Parliaments and Courts must deliver on R2A and not compromise their constitutionally defined roles.”

The report illustrates how the investor-state-dispute settlement mechanism (ISDS), the recently proposed Investment Court System (ICS), 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 expert noted that a wide range of basic rights have been negatively impacted by trade agreements and arbitration awards; among them: the right to self-determination and sovereignty over natural wealth and resources (especially of indigenous populations), the right to life and health, e.g. when access to generic medicines is impeded, the right to work, the right to humane labour conditions, the right to access information - including on commercial treaties, the right to peaceful assembly and association, and the right to public participation.

“Civilization has taken centuries to build the rule of law and its system of transparent and accountable public courts, It is unconstitutional for countries to undermine the rule of law by establishing a competing system of pseudo-courts,” emphasized the expert, expressing concerns at the erosion of the rule of law through the privatization of dispute settlement. Instead the domestic and regional court systems should be strengthened and expanded.  “The path to a democratic and equitable order is through the expansion of public courts, not the creation of private courts with questionable transparency, accountability or independence”.  

“Arbitrators and judges must be required by their terms of reference to interpret trade agreements in the light of binding human rights treaty obligations. Domestic courts must deny effect to investor–State dispute settlement awards and WTO dispute settlement decisions that violate human rights,” he stressed.  

In his report, the Independent Expert also draws attention to the fact that the Comprehensive Economic and Trade Agreement (CETA), the Trans Pacific Partnership (TPP), the Transatlantic Trade and Investment Partnership (TTIP) and the Trade in Services Agreement (TISA) 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. 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” stated the expert.

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.

“Surely the Council did not intend to convene an assembly of Cassandras when it established the Special Procedures.  We believe in the added value of our reports and expect States to take our recommendations seriously into account,” the expert concluded. “For this we also rely on People Power and civil society activism.”

(*) Check the Independent Expert’s full report:

Source: United Nations Human Rights Office of the High Commissioner.