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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Filed Under: alfred de zayas, human rights, secrecy, tpp, trade agreements, transparency, ttip, un

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  1. 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.

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