Don’t sign TPP without committing to human rights, says UN expert

The controversial Trans-Pacific Partnership agreement among 12 Pacific Rim economies was signed in Auckland, New Zealand, on 4 February despite substantial opposition by civil society groups in the participating countries. Adding to the concerns surrounding the TPP, a UN human rights expert had, on the eve of the signing, urged against outright endorsement of the “fundamentally flawed” treaty, as Kanaga Raja reports below.

GENEVA: The Trans-Pacific Partnership (TPP) is “fundamentally flawed” and should not be signed or ratified unless provision is made to guarantee the regulatory space of states, a United Nations human rights expert declared on 2 February.

The appeal was made by Alfred de Zayas (United States), the Independent Expert on the promotion of a democratic and equitable international order, in a public statement issued on the eve of the gathering of trade ministers from 12 Pacific Rim countries in Auckland, New Zealand, on 4 February to sign the TPP agreement.

The TPP participants are Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam.

In his statement, de Zayas said that trade “is not an end in itself, but must be seen in the context of the international human rights regime, which imposes binding legal obligations on States.”

“Trade agreements are not ‘stand-alone’ legal regimes, but must conform with fundamental principles of international law, including transparency and accountability. They must not delay, circumvent, undermine or make impossible the fulfilment of human rights treaty obligations.”

The rights expert said he was concerned that, notwithstanding enormous opposition by civil society worldwide, 12 countries were about to sign an agreement which was the product of secret negotiations without multi-stakeholder democratic consultation.

“Parliaments have a crucial role in ensuring that ex ante and ex post human rights, health and environmental impact assessments are conducted, and that a procedure for withdrawal from the TPP without ‘survival clauses’ is built into the agreement.”

Outdated model

De Zayas recalled that his report to the UN Human Rights Council in 2015 explained the major legal problems with this outdated model of trade agreements. In this context, he called for a new generation of holistic trade agreements for the 21st century which would incorporate human rights and development into their provisions.

He further recalled that in his report to the UN General Assembly in 2015, he had called for the abolition of investor-state dispute settlement (ISDS) arbitrations as “fundamentally imbalanced and unjust, since investors can sue governments  whereas  governments  cannot sue investors before these ad hoc tribunals.”

Trade and investment disputes can be settled under the rule of law by recourse to national jurisdictions and/or state-to-state mechanisms, he said. The disturbing experience of the last 30 years of ISDS shows that there has been a serious asymmetry that must not be repeated in any future trade agreement.

“The options are not to sign the TPP as it stands, as civil society demands, or not to ratify it, which is the responsibility of democratically elected parliaments,” said de Zayas.

“Should the TPP ever enter into force, its compatibility with international law should be challenged before the International Court of Justice (ICJ).”

Already now, he noted, the ICJ could be called upon to issue an advisory opinion stating that in case of conflict between trade agreements and the UN Charter, including its provisions on state sovereignty, human rights and development, it is the Charter that prevails.

“Although observers worldwide oppose the TPP, because of its undemocratic pedigree, in clear violation of articles 19 and 25 of the International Covenant on Civil and Political Rights, and because of the ‘regulatory chill’ that it brings with it – corporate lobbies have now brought the TPP to the table.”

“If a public referendum were held in all twelve countries concerned, it will be solidly rejected,” the rights expert said.

On the eve of the gathering of the trade ministers in Auckland, the Independent Expert called on governments to issue an interpretative declaration on the arrangement reaffirming the parties’ human rights treaty obligations and their recent pledges to achieve the Sustainable Development Goals.

[Meanwhile, a post on the International Economic Law and Policy Blog (worldtradelaw.typepad.com/ielpblog/2016/02/canada-must-sign-in-new-zealand-with-other-ministers-according-to-the-government-of-canada-is-this-r.html) has brought out how such trade treaties are poorly drafted, leaving it to ‘treaty interpreters’ to struggle to make sense of them.

[Such trade accords are negotiated in secret (with only trade offices of countries and corporations privy to their negotiating drafts), and the texts are published only after everything has been finalized and there is no scope for change, and just a little before the dates for signature and acceptance by countries (more or less on a take-it-or-leave-it basis).

[On the eve of the TPP’s signature in Auckland, there was apparently a controversy in Canada as to whether Canada (as one of the negotiating parties) should attend and sign at that time along with the others, or whether it could carefully study, decide whether to join or not, and then sign and accept.

[In response to the controversy, in a public letter to Canadians, the country’s International Trade Minister, Chrystia Freeland, drew specific attention to the TPP’s provisions regarding entry into force, its effects and its “rare language” to argue that “not attending would mean withdrawing from the TPP altogether, even before Canadians have had an opportunity to fully debate its implications.”

[In challenging this assumption, the IELP blog post notes that the treaty itself in Chapter 30 on entry into force has not defined “original signatory”, but has several provisions about entry-into-force requirements and accession of post-entry members, where if the ordinary meaning implies only those attending the 4 February signing, some absurd conclusions could easily ensue. From this point of view, the post suggests that “original signatory” must mean “original negotiating party”!

[A cynical conclusion to be drawn from this could be that trade treaties, including the Marrakesh Agreement establishing the WTO, have been poorly drafted with the intent to enable trade lawyers, and those judging trade disputes as ‘treaty interpreters’, to find a rewarding vocation. In the case of the Marrakesh treaty, such poor drafting was noticed and raised at the legal scrutiny stage (after December 1993, when negotiations were concluded at the official level) and before the meeting of ministers in April 1994 for signature.

[But at the legal scrutiny stage, even when raised by some developing countries, such drafting errors or variations in language on the same issues in different annexed agreements were not corrected, lest ‘delicate compromises’ struck in the negotiations be called into question in renegotiations. Instead, these were left to be ironed out in the WTO’s dispute settlement process (keeping, as now, trade lawyers, the WTO secretariat, panellists and the Appellate Body in lucrative employment at public expense). Ironically, that decision at the legal scrutiny stage was at the suggestion of Canada. – SUNS] (SUNS8172)             

Third World Economics, Issue No. 608, 1-15 January 2016, pp9-10