Rights experts voice concerns over BITs and FTAs

    A group of United Nations experts has voiced concerns over the potential detrimental impact that free trade and investment agreements such as the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) may have on the enjoyment of human rights.

     Geneva, 3 Jun (Kanaga Raja) — A group of United Nations experts has voiced concerns over the potential detrimental impact that free trade and investment agreements such as the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) may have on the enjoyment of human rights.

    In a statement issued Tuesday, the Independent Experts and Special Rapporteurs of the UN Human Rights Council stressed that ex ante and ex post human rights impact assessments should be conducted with regard to existing and proposed bilateral investment treaties (BITs) and free trade agreements (FTAs).

    The experts further expressed concern about the secret nature of drawing up and negotiating many of these agreements and the potential adverse impact of these agreements on human rights.

    The human rights experts include Mr Alfred de Zayas, Independent Expert on the promotion of a democratic and equitable international order; Ms Catalina Devandas Aguilar, Special Rapporteur on the rights of person with disabilities; Mr Dainus Puras, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; Ms Farida Shaheed, Special Rapporteur in the field of cultural rights; Ms Gabriella Knaul, Special Rapporteur on the independence of judges and lawyers; and Ms Hilal Helver, Special Rapporteur on the right to food.

    Also included in the group issuing the statement are Mr Juan Bohoslavsky, Independent Expert on the effects of foreign debts and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights; Mr Leo Heller, Special Rapporteur on the human right to safe drinking water and sanitation; Ms Victoria Lucia Tauli-Corpuz, Special Rapporteur on the rights of indigenous peoples; and Ms Virginia Dandan, Independent Expert on human rights and international solidarity.

    In their statement, the rights experts said: “While trade and investment agreements can create new economic opportunities, we draw attention to the potential detrimental impact these treaties and agreements may have on the enjoyment of human rights as enshrined in legally binding instruments, whether civil, cultural, economic, political or social.”

    Their concerns relate to the rights to life, food, water and sanitation, health, housing, education, science and culture, improved labour standards, an independent judiciary, a clean environment and the right not to be subjected to forced resettlement.

    The statement said that as also underlined in the UN Guiding Principles on Business and Human Rights, States must ensure that trade and investment agreements do not constrain their ability to meet their human rights obligations (Guiding Principle 9).

    “Observers are concerned that these treaties and agreements are likely to have a number of retrogressive effects on the protection and promotion of human rights, including by lowering the threshold of health protection, food safety, and labour standards, by catering to the business interests of pharmaceutical monopolies and extending intellectual property protection.”

    According to the rights experts, there is a legitimate concern that both bilateral and multilateral investment treaties might aggravate the problem of extreme poverty, jeopardize fair and efficient foreign debt renegotiation, and affect the rights of indigenous peoples, minorities, persons with disabilities, older persons, and other persons living in vulnerable situations.

    “Undoubtedly, globalization and the many Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs) can have positive but also negative impacts on the promotion of a democratic and equitable international order, which entails practical international solidarity,” they said.

    The UN experts further noted that investor-State dispute settlement (ISDS) chapters in BITs and FTAs are also increasingly problematic given the experience of decades-related arbitrations conducted before ISDS tribunals.

    “The experience demonstrates that the regulatory function of many States and their ability to legislate in the public interest have been put at risk,” the rights experts underlined.

    The experts believe the problem has been aggravated by the “chilling effect” that intrusive ISDS awards have had, when States have been penalized for adopting regulations, for example, to protect the environment, food security, access to generic and essential medicines, and reduction of smoking, as required under the WHO Framework Convention on Tobacco Control, or raising the minimum wage.

    “ISDS chapters are anomalous in that they provide protection for investors but not for States or for the population. They allow investors to sue States but not vice-versa,” said the statement.

    The adoption in 2014 of the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration is an important step to address the problem of the typically confidential and non-participatory nature of investor-State agreements.

    “Greater transparency should serve to remedy incoherence between current modes of investment with human rights considerations.”

    The experts invited States to revisit the treaties under negotiation and ensure that they foster and do not hinder human rights.

    “If the treaties in question include a chapter on investor-State dispute settlement, the terms of reference of the arbitrators must be so drafted that interference in the domestic regulation of budgetary, fiscal, health and environmental and other public policies are not allowed.”

    Moreover, arbitration tribunals should allow public review and its awards must be appealable before the International Court of Justice or a yet-to-be-created International Investment Court working transparently and with accountability.

    There must be a just balance between the protection afforded to investors and the States’ responsibility to protect all persons under their jurisdiction, said the experts.

    The experts recommended that all current negotiations of bilateral and multilateral trade and investment agreements should be conducted transparently with consultation and participation of all relevant stakeholders including labour unions, consumer unions, environmental protection groups and health professionals.

    In addition, all draft treaty texts should be published so that Parliamentarians and civil society have sufficient time to review them and to weigh the pros and cons in a democratic manner.

    “The Parties should detail how they will uphold their human rights obligations if they ratify the BITs and FTAs under negotiation.”

    Given the breadth and scope of the agreements currently under negotiation, robust safeguards must be embedded to ensure full protection and enjoyment of human rights, the experts said. +

    Online Publication Date: 04 June 2015

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