UN Expert: Secret Trade Negotiations Are A 'Threat To Human Rights'

from the null-and-void dept

Here on Techdirt, we've had plenty of posts looking at the major trade agreements currently being negotiated. As we've noted, criticism of TPP and TAFTA/TTIP has come from many quarters, particularly for the corporate sovereignty provisions, which are seen as problematic both on the left and right wings of the political spectrum. Intellectual Property Watch carries a fascinating statement criticizing key aspects of trade negotiations, which looks at things from quite a different angle. It's written by Alfred de Zayas, who is the "Independent Expert on the promotion of a democratic and equitable international order" -- apparently an honorary and unpaid position. In his statement, he expresses:

his deep concern over the general lack of awareness on the adverse effects that existing, or under negotiations, bilateral and multilateral free trade and investment agreements have on the enjoyment of human rights in many countries, particularly in the developing world.
Specifically, he is concerned about the secrecy of trade talks, and the fact that key stakeholders like trade unions, environmental protection grups and health professionals are excluded -- something that we've commented on many times here on Techdirt. He also thinks that fast-tracking the adoption of treaties -- as is currently being attempted in the US -- has a "detrimental impact on the promotion of a democratic and equitable world order." That's because, as de Zayas puts it:
It is tantamount to disenfranchising the public and constitutes a violation to accepted human rights law, which stipulates that every citizen shall have the right and the opportunity to take part in the conduct of public affairs.
No surprise, then, that de Zayas has particular concerns about an area that is very familiar to Techdirt readers: corporate sovereignty.
I am especially worried about the impact that investor-state-arbitrations (ISDS) have already had and foreseeably will have on human rights, in particular the provision which allows investors to challenge domestic legislation and administrative decisions if these can potentially reduce their profits.

...

The establishment of parallel systems of dispute settlement and their exemption from scrutiny and appeal are incompatible with principles of constitutionality and the rule of law, and as such are harmful to the moral welfare of society ("contra bonos mores").
One intriguing point de Zayas makes is that since all nations are bound by the UN Charter, any treaties they negotiate must also conform to its provisions. Article 103 of that Charter states that if there is any conflict between a treaty and the UN Charter, it is the Charter that prevails. That has interesting implications for corporate sovereignty cases before ISDS tribunals:
Provisions of free trade and investment agreements as well as decisions of ISDS arbitrators must conform with the UN Charter and must not lead to a violation, erosion of or retrogression in human rights protection or compromise State sovereignty and the State’s fundamental obligation to ensure the human rights and well-being of all persons living under its jurisdiction. Agreements or arbitral decisions that violate international human rights law are null and void as incompatible with Article 103 of the UN Charter and contrary to international ordre public.
That's a great point, although it's a little hard to see it having much practical impact on the current negotiations. Unfortunately, the same might be said about the whole of de Zayas's statement, but it's certainly good to have his analysis here.

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  • identicon
    avideogameplayer, 29 Apr 2015 @ 1:20am

    When has anyone ever paid attention to the U.N. lately?

    Unless the U.N. actually starts stepping up their game, it's all bark and no bite...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Apr 2015 @ 3:03am

      Re:

      Ofcoures not. Drone killings are a lot more dangerous to human rights than this.
      Not surprising, the NSA probably has enough dirt on everyone at UN to keep them quiet for a long while.

      reply to this | link to this | view in chronology ]

  • identicon
    Roland, 29 Apr 2015 @ 1:23am

    I'm a Dutchman and I know my country is very popular with the multinationals for it's tax evasion friendly policies.

    Obviously, these policies are beneficial to the profitability of those big multinationals to the detriment of other countries (like Greece) and there is international pressure to change these laws.

    I think those laws should change but I wonder if that would allow those multinationals to then sue the Dutch government for hurting their profits under TTIP.

    reply to this | link to this | view in chronology ]

  • icon
    lfroen (profile), 29 Apr 2015 @ 2:09am

    Exaggerating a little bit, ah?

    It's quite possible that TPP and similar treaties are bad idea all around, but "Threat To Human Rights"? Please ....

    While I believe that whole idea of "(God given) human rights" is ridiculous, trade agreements have nothing to do with it. Unless corporation can (legally) start killing people - it's OK.

    And no, making medication more expensive doesn't count as "killing people".

    reply to this | link to this | view in chronology ]

    • identicon
      AJ, 29 Apr 2015 @ 3:20am

      Re: Exaggerating a little bit, ah?

      I'm going to have to disagree with you. If you look at the definition of "Sovereignty" you can immediately see how it could be used by a company to violate our human rights.

      "in particular the provision which allows investors to challenge domestic legislation and administrative decisions if these can potentially reduce their profits."

      Think about it. A life saving drug is invented, 1 pill cures all cancer. The companies know they hold a gold mine, and decide to charge 1 million dollars a pill. The gov steps in and says no, it only cost you 50K per pill to produce and for the RD to develop it. Under these types of trade agreements, the company has the right to sue the gov for lost profits/and or to have the law reversed.

      Any attempt by the people to put humanity in front of profits will result in a lawsuit. You think wealth imbalance is bad now, wait until the rich can control legislation through the courts. You think they will use their money/power for the betterment of humanity? Or will they use it to gather more wealth? Companies have a responsibility to their share holders, not humanity.

      Profits over humanity, that is all these types of trade agreements are designed to do. When is that EVER a good idea?

      reply to this | link to this | view in chronology ]

      • icon
        lfroen (profile), 29 Apr 2015 @ 5:26am

        Re: Re: Exaggerating a little bit, ah?

        >> If you look at the definition of "Sovereignty" ...

        Definition of "Sovereignty" is "monopoly on lethal violence". It have nothing to do with price of pills (or bread).

        >> A life saving drug is invented
        By whom? Right to private property is real thing. Company that invented this "life saving drug" have every right to charge _any_ price for it. Yes, _any_ price.

        >> ... put humanity in front of profits will result in a lawsuit
        And rightly so. Private property is basis of modern society, not some "humanity" principle.

        >> Companies have a responsibility to their share holders, not humanity
        I guess shareholders do not belong to "humanity". Who the hell is this "humanity" that attempts to dictate to private company how to operate?

        The ideas of "humanity first" had already been tried - see USSR, PRC, North Korea and so on. In good case - you have local hunger, in bad - genocide.

        reply to this | link to this | view in chronology ]

        • identicon
          Pragmatic, 29 Apr 2015 @ 6:38am

          Re: Re: Re: Exaggerating a little bit, ah?

          Definition of "Sovereignty" is "monopoly on lethal violence". It have nothing to do with price of pills (or bread)..

          >>>>>Sovereignty is understood in jurisprudence as the full right and power of a governing body to govern itself without any interference from outside sources or bodies. - Wikipedia


          Right to private property is real thing. Company that invented this "life saving drug" have every right to charge _any_ price for it. Yes, _any_ price.
          >>>>>No, they don't. This is monopoly, which is anti-competitive and against the idea of the free market. Not that there is one... due to monopolies. The only way this would be reasonable is if other people can also make the drug and charge whatever price they want for it. Then the company is subject to market forces and obliged to compete with other makers and distributors. I should also point out that R&D is generally carried out in universities and is therefore ALREADY paid for.


          >>>>>Private property is basis of modern society, not some "humanity" principle.

          Uh, no. Family is. But libertarians don't tend to get the whole "community" thing. Everybody must own something, money is a form of freedom, voluntary exchange... Go and read "Jennifer Government" to get an idea of what a world run by people who think like you do would actually look like in practice.


          >>>>>I guess shareholders do not belong to "humanity". Who the hell is this "humanity" that attempts to dictate to private company how to operate?

          Their customers, competitors, and anyone caught in the crossfire. I know you think corporations are people. Does this mean you believe they're more human than we are and therefore have more rights? Who the hell are these "private companies" that attempt to dictate to humanity how to operate?

          >>>>>The ideas of "humanity first" had already been tried - see USSR, PRC, North Korea and so on. In good case - you have local hunger, in bad - genocide.

          Uh, no. In each case a centralized authoritarian government took control of the administration of the state. Result: a huge mess. Corporations keep merging, getting bigger and dictating policy to our elected officials. In good case - you have local hunger, in bad - genocide. See any third world country for details.

          reply to this | link to this | view in chronology ]

        • icon
          tqk (profile), 29 Apr 2015 @ 8:01am

          Re: Re: Re: Exaggerating a little bit, ah?

          As a small "l" libertarian myself, I must say your form of it is a perversion of it. Creators of any sort, from individuals through multi-national corporations do not exist in a vacuum. They/we all benefit from the societal structures within which we co-exist. Police, the courts, and national defense are (in theory) good things from which we all benefit and would not exist without the cooperation of the vast majority with whom we share our existence, including now dead past generations to whom we owe thanks for helping that to happen. Assuming the right to rapacious profit just because you've a monopoly on something is not "just compensation." It's plundering the collective efforts and achievements of fellow citizens.

          It's been long accepted that having risen above the jungle's tooth and claw is an overall good thing. We shouldn't be pining to go back to it.

          reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 29 Apr 2015 @ 4:23am

      Re: Exaggerating a little bit, ah?

      If you assume that one of those 'human rights' is to have a government that actually represents the people who elected them, rather than one that can be overruled by any company that feels that their 'profits' might be in danger, then yeah, corporate sovereignty clauses are indeed a threat.

      reply to this | link to this | view in chronology ]

      • icon
        lfroen (profile), 29 Apr 2015 @ 5:16am

        Re: Re: Exaggerating a little bit, ah?

        >> one of those 'human rights' is to have a government that ...
        You have no such right. Who do you think should grant you such "right"? God? Church? UN? Aliens?
        You're welcomed to be politically active and (try to) put in charge any kind of government you see fit. Every country and its laws, every nation and its customs.

        reply to this | link to this | view in chronology ]

        • identicon
          Unanimous Cow Herd, 29 Apr 2015 @ 6:39am

          Re: Re: Re: Exaggerating a little bit, ah?

          "Every country and its laws, every nation and its customs."

          Except when it hurts corporate profits and Mc Donalds (or whoever) overturns voter ballot legislation via shady trade agreement.

          reply to this | link to this | view in chronology ]

    • identicon
      Unanimous Cow Herd, 29 Apr 2015 @ 6:36am

      Re: Exaggerating a little bit, ah?

      Oh contraire mon frere. Pricing life saving drugs (such as HIV and AIDS drugs) out of reach of most of a continent (Africa) has done exactly that. The effect is the same when patent laws are gamed to keep less expensive drugs off the market.

      Are you saying that "killing" is where we should set the bar to decide where corporate profits should have to suffer a little?

      My wife has to get a shot every three months. It is $5600 for the shot, not counting the cost of the office visit to get it. This drug has been on the market for decades and is NOT expensive to produce, but due to Pharma Co. X's gaming of the patent system, there is no generic and we have no alternative. Not getting it may not kill her immediately, but will cause much pain and suffering. Now, tell my wife how "killing" should be where we set the limit to corporate profits.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2015 @ 2:44am

    They haven't listened to the UN before. Why would they now, especially on an issue like this?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2015 @ 3:28am

    the main point of all these various 'Trade Deals' is to completely remove human rights. big business has for decades tried to rule the world, removing any and all obstacles, mainly human rights, from the people. since the purposely introduced 'financial crash' of a few years ago, many countries held elections. the resulting governments that the stupid public put in place, almost everywhere was a Conservative government or one based on their principles. it made for the best chance for the planet basically to become a giant corporation, one where the 'ordinary people' had no say in what happened, no fall back when things went wrong and definitely no way of challenging those who wanted, for example, to go against companies and industries that put profits before anything else. i just hope that after the years that have followed the crash that people can actually see the harm that has been done and will continue to be done if governments aren't ousted at the next country elections. if those in power remain, whatever shit gets thrown at the people, they will be getting what they deserved. as for the UN quotes, the way every other part of human rights is being ignored, there wont be any change until the people everywhere get so pissed off at what is happening that they fight back. the scary thing there is the death and destruction that will accompany that doesn't bear thinking about! the deaths of last two world wars wouldn't be a patch on the results of the next one

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 29 Apr 2015 @ 8:30am

      Re:

      There've been many conspiracy theorists over the years suggesting that the point of all these machinations is pointing to population reduction "back to manageable levels." I've never managed to bring myself to believe anyone could be that vicious. That's a level of mass murder even Hitler never aspired to.

      If that's the sort of thinking going on in billionaires' minds, then they're far worse than the worst disease epidemics we've ever experienced.

      reply to this | link to this | view in chronology ]

  • identicon
    Yes, I know I'm commenting anonymously, 29 Apr 2015 @ 3:49am

    another angle?

    I agree that this will not have much impact to the current treaties and ongoing negotiations. However, it does provide a new angle to have the courts invalidate the treaties. It will be a long process but I can see the ACLU and/or similar organisations taking this route.

    reply to this | link to this | view in chronology ]

  • identicon
    C Gordon, 29 Apr 2015 @ 5:14am

    A complementary report by another UN Special Rapporteur

    Shaheed, F. (2014 December 24). Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed: Copyright policy and the right to science and culture (Human Rights Council Twenty-eighth session Agenda item 3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights including the right to development,A/HRC/28/57) New York: United Nations General Assembly. http://bit.ly/1J7xktZ provides a complementary view of these issues, entering into
    these matters in some detail,describing IGO IP principles, UN interpretation of relative hierarchies of instruments, frameworks and options for resolving the imbalances arising when IP is only considered from a trade angle, under conditions of secrecy for all others affected.

    This is one UN report that merits reading.

    And it is worth looking at Infojustice.org's pages such as http://infojustice.org/archives/31753 or http://infojustice.org/draft-trade-agreement-principles site for links to specific NGO principles.

    Joseph Stiglitz, Robert Reich and other economists have perceived only too clearly what it is like for smaller states negotiating with smaller. Loss of sovereign determination of one's own future and culture is no small thing. The above sources provide some assistance in suggesting how this could be assisted to a degree.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2015 @ 11:01am

    Ask Hillary

    I'd like to ask Hillary about that, and see where she stands on secret agreements.

    (hdr22@clintonemail.com)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2015 @ 2:34pm

    That expert only wants things for free.

    reply to this | link to this | view in chronology ]


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