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UN: Call to Include Human Rights Provisions in Trade Agreements and Dispute Resolution

(Sept. 27, 2016) On September 13, 2016, the United Nations Independent Expert on the Promotion of a Democratic and Equitable International Order, Alfred de Zayas, called for all future trade agreements to include provisions extolling the primary importance of human rights. He also said that the treaties should be aligned with the duty that states have to meet the requirements of the human rights accords they have signed, as well as health and environmental goals. (Trade Agreements Should Mainstream Human Rights, UN Expert Urges, SOUTH-SOUTH NEWS (Sept. 13, 2016); Press Release, Office of the United Nations High Commissioner for Human Rights, Mainstream Human Rights into Trade Agreements and WTO Practice – UN Expert Urges in New Report (Sept. 13, 2016).)

Views on Treaties

On presenting a July 2016 report to the U.N. Human Rights Council, de Zayas stressed the importance of including these issues in trade agreements, stating:

Investors and transnational enterprises have invested new rules to suit their needs, rules that impinge on the regulatory space of States and disenfranchise the public. … 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. (Mainstream Human Rights into Trade Agreements and WTO Practice …, supra; Report of the Independent Expert on the Promotion of a Democratic and Equitable International Order (Report), A/HRC/33/40 (July 12, 2016), U.N. General Assembly website.)

He added that parties should “mainstream” human rights in trade agreements and World Trade Organization (WTO) regulations and that the development, negotiation, adoption, and implementation of trade agreements should not be carried out in secret. Instead, civil society stakeholders such as consumer organizations, health experts, and environmental groups should be included in every part of the process of creating trade agreements and putting them into effect. (Mainstream Human Rights into Trade Agreements and WTO Practice …, supra.)

Responsibility to Act

In his recent Report, de Zayas described the concept of “responsibility to act in the public interest” (R2A), a reformulation of the previous human rights concept of “responsibility to protect,” commonly referred to as R2P. (Id.) He stated that the focus of human rights attention should be extended “out of the narrow focus on protecting populations from war crimes and genocide to a broader duty to protect populations from war, military interventions and structural violence. The international community has an interest in reaffirming a duty to protect and actively advance civil, cultural, economic, political and social rights.” (Report, supra, ¶ 13.)

Views on Dispute Resolution Mechanisms

In addition to discussing the need to include human rights provisions in treaties, the report expresses the view that mechanisms to settle disputes between investors and nations, including WTO dispute resolution methods have had a bias in favor of business over human rights. (Mainstream Human Rights into Trade Agreements and WTO Practice … , supra.) De Zayas identified the following rights as potentially being curtailed by the trade dispute resolution process:

  • self-determination;
  • sovereignty over valuable natural resources;
  • life and health (particularly where access to generic medicines is blocked);
  • work in “decent” conditions;
  • access to information, including data concerning commercial treaties;
  • peaceful assembly and association; and
  • public participation. (Id.)

The Independent Expert argued:

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.” (Id.)