Statement of Mr. Alfred-Maurice de Zayas Independent Expert on the promotion of a democratic and equitable international order at the Human Rights Council 33rd Session

13 September 2016

Mr. President,
Distinguished delegates,
Ladies and gentlemen,

Over its first ten years, the Human Rights Council has recorded numerous achievements, notably in connection with the UPR, but also through the creation of thematic and country mandates that have shown added value.  Special procedures mandate holders have presented hundreds of substantive reports with pragmatic and implementable recommendations.

Alas, the lack of follow-up to their reports and the chronic non-implementation of recommendations have been a disappointment to victims and put the credibility of the system into question.  States must decide whether the mandates that they themselves created deserve closer attention, country visit requests, questionnaires and communications merit timely and substantive responses, and generally whether the promise of special procedures will be supported with sufficient resources.

States that have been found at fault with respect to the realization of civil, cultural, economic, political and social rights should demonstrate their commitment to the joint venture by implementing the recommendations of Rapporteurs and working groups, even if they may still entertain reservations about them.  Hitherto experience shows that most reports are only superficially discussed and then filed away to be forgotten.  Unfortunately this also applies to General Assembly, ECOSOC and Advisory Committee reports and resolutions. I take this opportunity to urge civil society and national human rights institutions to be the champions of Special procedures by giving visibility to reports, recommendations and resolutions and advocating their implementation in the countries concerned.  People power may yet prove to be the best way to obtain enforcement of human rights treaty commitments and soft-law recommendations.  Good faith requires that States that created this system of human rights monitoring make a genuine effort to give effect to its recommendations. The rule of law suffers when States continue to ignore human rights treaty obligations with impunity. The international order  is well served when States decide to advance the rule of law through the enforcement of Human Rights Council commitments and through the strengthening and expansion of the Regional Court systems.

My fifth report to the Council focuses on the impacts of trade on the international order, in particular on human rights. Already my 2015 reports to the Council and General Assembly gave concrete examples of the adverse effects of bilateral investment treaties and free trade agreements on the enjoyment of human rights, particularly in the developing countries, but also in developed countries where the mere existence of investor-state-dispute settlement (ISDS) has generated a severe regulatory chill as I have illustrated in my reports. Let me leave one crucial point in your minds: the present trend to privatize law at the expense of public institutions is an assault on the rule of law.  This trend must be stopped and reversed. These private arbitral tribunals undermine the rule of law and the very fabric of the social contract.

In my reports I have drawn attention to the fundamental problem that while States have binding human rights treaty obligations, they have not created an effective enforcement mechanism, although these are hard-law obligations based on treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights. I deplore the paradox that the same States that have ratified human rights treaties, also enter into commercial treaties which delay, undermine or make impossible the fulfillment of human rights treaty obligations. This raises issues of good faith under article 26 of the Vienna Convention on the Law of Treaties. 

I proposed a detailed plan of action to the attention of States, Parliaments, civil society, the Human Rights Council, UN agencies and subsidiary organs. I recommended that the Human Rights Council and the General Assembly work together in submitting pertinent legal questions to the International Court of Justice for advisory opinions on conflict of laws issues, the priority of human rights treaty obligations over commercial treaties and the primacy of the UN Charter over all other treaties as stipulated in article 103 of the Charter.  An advisory opinion would be an important guide for States when revising or terminating BITS and FTAs, and when entering into new commercial treaties.  Yet, despite the fact that my modest contribution to assist States to better fulfill their human rights obligations was qualified as “excellent”, “comprehensive” and “insightful” by Members of this Council, my reports will remain dead letter unless States reflect on the modalities of implementation. Surely trade has contributed to growth in many countries, but unregulated markets have also led to financial crises, massive unemployment, dislocation, the destruction of the agricultural sector in several countries, and an aggravation of the enormous intra-State and inter-State inequality.  This has been documented by numerous inter-governmental organizations like South Centre and by think tanks like Oxfam, the Transnational Institute and Corporate Europe Observatory, amongst many others.

Pursuant to Council Resolution 30/29 I was invited to continue my research into the impacts of trade agreements. Accordingly, I have devoted my current report to the adverse consequences of the privatization of dispute settlement through the operation of ISDS tribunals and through the recently proposed investment court system (ICS), both of which impinge on the sovereignty and policy space of States and strip entire populations of democratic rights of participation, of recourse and remedy.  I therefore propose that in matters of such importance, there should be full disclosure by governments in conformity with the right to know stipulated in article 19 of the ICCPR, ample consultation of all stakeholders and full public participation in decision-making pursuant to article 25 ICCPR. 

On 20 April 2016, I transmitted, together with six other Special Procedures mandate holders, a communication to all 12 countries that signed the Trans Pacific Partnership, outlining the many procedural and substantive problems associated with this mega treaty, the adverse consequences of which have been amply argued by health professionals, environmental groups, consumer unions and other stakeholders who essentially were excluded from any meaningful participation in the elaboration and negotiation of the treaty, as they have been systematically excluded from participation in the adoption of other trade agreements.

On 30 June 2016 a response was received from TPP signatories (except from Canada that provided a separate response on 19 August 2016). Although signatories contend that the TPP will not adversely affect the enjoyment of human rights, there is considerable expert evidence and assessments to the contrary.  While I thank the concerned Governments for taking the time to prepare a coordinated response, I am deeply concerned that the response does not address substantially the concerns raised, is weak on legal argument and impregnated with ideological mantras.  Again, this is a classic example of how little human rights matter when lobbies of investors and transnational corporations push against the views of civil society including Nobel laureates and hundreds of professors of law and economics.  Ultimately, as we have learnt through past experience, denial is not the answer to compelling human rights issues. What we urgently need is a frank and constructive dialogue premised on the commitments by all parties to uphold human rights. I remain available to provide advice to the concerned authorities in this matter and I will continue to engage with Member States on this and other commercial treaties.

Saying “no” to the Trans-Pacific Partnership, the Transatlantic Trade and Investment Partnership, the Comprehensive Economic and Trade Agreement and the Trade in Services Agreement will not have apocalyptic consequences, bring world trade to a grinding halt or make Foreign Direct Investment stop flowing. The treaties are fundamentally flawed and must be revised so that trade benefits all in society, not only super-rich investors and transnational corporations. Moreover, there is no compelling need for mega-treaties, which hitherto have engendered advantages for only a few and disadvantages for many. The world economy before free trade agreements and investor-State dispute settlement was certainly not business-unfriendly and it prospered through a  healthy level of trade.

In numerous media statements, I have warned about the lack of democratic legitimacy of commercial treaties that have been elaborated in secret and forced through parliaments without full public debate.  Accordingly, I proposed the use of national referenda in all countries where such treaties are under negotiation.  Furthermore I invited the principal UN organization on trade, UNCTAD, to convene at World Conference with the mandate to revise existing BITS and FTAs so as to make them compatible with human rights treaty obligations. On numerous occasions, I have warned against ISDS arbitrations where States’ policy space in the fields of labour, health and environmental protection has been seriously compromised, aggravating inequality and inequity in the world.  Indeed, the mere existence of ISDS has caused a harmful regulatory chill that delays or impedes the adoption of timely precautionary measures to protect the population from health and environmental dangers. 

I take this opportunity to support paragraph 3 of the outcome document of the Fourteenth Session of UNCTAD, held in Nairobi in July 2016: “…the role of national policies and development strategies cannot be over emphasized.” Each country has primary responsibility for its own economic and social development, which also needs an enabling international environment.  International cooperation, finance, technology, and capacity building can and should “support national efforts in line with national priorities and respecting each country's policy space”.

An international order that is equitable and democratic requires States to be committed to the rule of law, non-discrimination and public accountability. It must not be undermined by investors, speculators or transnational enterprises avid for short-term profit to establish a new world order driven by market fundamentalism, natural resources exploitation and civil society exclusion.

My report also makes reference to the important opinions issued by the Deutscher Richterbund – the German professional association of judges – and by Jueces para la Democracia – its Spanish counterpart – both of which reject the recently proposed Investment Court System. The idea of replacing investor-State dispute settlement is welcome, but ICS is a poor rebranding exercise. Indeed, it fails to address most of the fundamental problems of ISDS. One of the greatest achievements of civilization is the establishment of public courts that are transparent and accountable. ISDS and the proposed ICS constitute an assault on the rule of law, as I stated before the Parliamentary Assembly of the Council of Europe in April 2016.

Mr, President, ladies and gentlemen

The report before you also reviews WTO rules and practice and criticises the business bias of WTO Dispute settlement panels that, for instance, ruled in 2016 against India’s National Solar Mission, illustrating how arcane trade rules are used to undermine governments that support clean energy and local jobs.  As civil society rightly pointed out, the ink was barely dry on the Paris Climate agreement when the WTO panel decided that “trade trumps concrete action on climate change.¹”

In my report, I also reflect on the potential of the World Trade Organization to advance human rights through improved trade rules and a gradual mainstreaming of human rights into its agenda. Indeed, trade can and should promote development, not just in theory, but also in practice.  Yet, in order to achieve results, it will be necessary to take leave from neoliberal mantras of privatization and deregulation of markets and financial flows. These have no basis on empirical evidence and for decades have been promising results but not delivered.

Allow me to mention several instances of retrogression in human rights which we have witnessed in 2015-16.  The Outcome document of the WTO Tenth Ministerial Conference held in Nairobi in December 2015 disappointed many.  The document was elaborated in a non-transparent, non-participatory manner and thus suffers from grave procedural and substantive deficits.  Reports by many participants complain of the intransigence of a number of States that were bent on burying the Doha Development Agenda, notwithstanding the fact that barely three months earlier they had formally agreed at the UN Summit on the Sustainable Development Agenda in paragraph 17.10, to:  “Promote a universal, rules-based, open, non-discriminatory and equitable multilateral trading system under the World Trade Organization, including through the conclusion of negotiations under its Doha Development Agenda.”

That being said, I remain encouraged by what I experienced during the eleventh session of the WTO-Inter Parliamentary Union Conference, held on 13 and 14 June 2016. The outcome document calls on WTO Members to show “Flexibility, openness, inclusiveness and political engagement” as a “key to advancing on all the remaining issues of the Doha Development Agenda.” I wholeheartedly encourage WTO Members to deliver on Doha with the active support of Parliaments.

A classic example of retrogression and subordination of human rights to trade became evident at the 54th session of the UN Commission on Social Development on 12 February 2016.  A resolution, which hitherto had always been adopted by consensus, was boycotted by certain States which did their utmost to drop the standard reference to Doha.  As embarrassing as it sounds, the resolution was put to a vote and adopted by 29 in favour and 12 against². Fortunately, operative paragraph 29 retains the reference to “continuous support for measures to address the challenges of poverty eradication and sustainable development in Africa, with special emphasis on the Sustainable Development Goals…, the promotion of social protection systems and the conclusion of the Doha round of negotiations of the World Trade Organization”.

My report goes on to introduce a new concept that builds on the R2P doctrine.  I call it R2A, the Responsibility of Governments, Parliaments and Courts to Act in the public interest.  This goes well beyond R2P and reflects the ontology of what the rule of law must be. Responsibility to act means breaking with “business as usual” and taking preventive and corrective action to ensure the primacy of human rights, health and environmental protection, and the right to development. CETA, TTIP, TPP and TISA are incompatible with the State’s responsibility to act in the public interest.  By letting through treaties that are contrary to public well-being, States would be failing in their ontological duties.  In democratic societies, this should have consequences, including personal liability of the negotiators.

Among my recommendations to States, Inter-Governmental Organizations, Parliaments, Civil Society and Universities I would like to highlight the following:

• States should ensure full disclosure, consultation and public participation on treaties that have major consequences for the public.
• States should conduct human rights, health and environmental impact assessments as indispensable components of treaties’ negotiation process.
• States should obtain the consent of the electorate by conducting referenda.
• States should impose a moratorium on the execution of ISDS awards until the entire system is tested by the International Court of Justice.
•  States should cooperate with the inter-governmental working group on the drafting of a binding treaty on corporate social responsibility and adopt it expeditiously. The treaty should put teeth on the Guiding Principles on Business and Human Rights and provide for monitoring and enforcement mechanisms. The treaty should give recourse and remedy to victims of abusive activities by transnational corporations.
• Parliaments should not approve trade agreements without exercising oversight functions and examining the compatibility of the agreements with national constitutions and human rights treaty obligations.
• Parliaments should make it illegal for treaty negotiators to agree to anti-democratic lock-in periods in investment treaties. 
• Parliaments should invoke the pertinent revision and termination procedures laid out in the Vienna Convention on the Law of Treaties to modify commercial treaties and abolish ISDS.
• WTO should mainstream human rights into all of its activities and issue directives to the dispute settlement panels so that human rights treaties are not violated.
• WTO dispute panels should interpret the exceptions in the General Agreement on Tariffs and Trade 1994 to support initiatives on food security, health and the environment and facilitate solutions to climate change. WTO should harmonize policies with the Food and Agriculture Organization of the United Nations (FAO) and OHCHR.

The Human Rights Council should become the international arena where Governments compete to show how to implement human rights most effectively, how to strengthen the rule of law and how to achieve social justice. Competition in human rights performance is the best kind of competition. The Human Rights Council should become the preeminent forum where Governments elucidate best practices in good-faith implementation of pledges, expansive interpretation of human rights treaties and inclusion of all stakeholders. The Human Rights Council must not be a politicized arena where States instrumentalize human rights as weapons to defeat their political adversaries, where human rights are undermined through “side shows”, the “flavour of the month”, or where international law is applied selectively or à la carte.

By way of postscript I would like to propose to this Council the creation of a mechanism, maybe as part of the UPR, to follow-up on the recommendations by working groups, rapporteurs and independent experts.  Indeed, when the Commission on Human Rights and later the Human Rights Council established special procedures, it was surely not their intention to convene an assembly of Cassandras, whose findings and warnings would be systematically ignored. Our moral vertigo over gross violations of human rights should not result in paralysis, but generate robust action.

Last not least, I thank all States, inter-governmental organizations, non-governmental organizations and experts that responded to my questionnaires and pay tribute to the competent and devoted staff of the Office of the High Commissioner for Human Rights.

I thank you for your attention.

Notes:

1. http://www.foei.org/news/wto-rules-renewable-energy-jobs-india-friends-earth-reaction

2. https://www.un.org/development/desa/dspd/united-nations-commission-for-social-development-csocd-social-policy-and-development-division/54th-session-of-the-commission-for-social-development-csocd54.html