UN Expert: ISDS Must Be Abolished

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TTIP: A Grave Threat to the Domestic & International Order

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July 5, 2016 Transcript of Interview with Alfred de Zayas

Independent Expert Alfred de Zayas says activities of investors and transnational corporations not only interfere in the regulatory space of States, but attack the very essence of sovereignty and self-determination

Biography: Alfred de Zayas (United States of America) was appointed as the first Independent Expert on the promotion of a democratic and equitable international order by the Human Rights Council, effective May 2012. He is currently professor of international law at the Geneva School of Diplomacy.
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On the Trans-Atlantic Trade and Investment Partnership, Mr. De Zayas in commenting on the proposed creation of an Investment Court System (ICS) stated that he considered this a labeling scam. That the ICS can only be a pseudo-court with one-way jurisdiction.

In a hearing before the Parliamentary Assembly of the Council of Europe, Alfred de Zayas explained why the Investor-State Dispute Settlement, ISDS, mechanisms contained in most trade and investment agreements are incompatible with democracy, the rule of law and human rights. And that the proposed TTIP Investment Court System is but a zombie of ISDS and suffers from many of the same fundamental flaws. This on April 19, with President Obama soon after making an official visit to Germany in a push to get the U.S. 28 EU country TTIP signed by year end. To get the story we go back to New York and the UN General Assembly.

DE ZAYAS: My 2015 reports to the Human Rights Council and General Assembly explore systemic problems associated with the international investment regime, which too often has hindered states in the fulfillment of their human rights treaty obligations. Grave issues of incompatibility with human rights norms must be addressed, both from the procedural aspect of the elaboration, negotiation and adoption of free trade and investment agreements, and from their substantive impacts.

My report to the Human Rights Council focuses on bilateral investment treaties and multilateral trade agreements. The report I am presenting to you now highlights the negative effects of ISDS--the Investor-State Dispute Settlement mechanism that accompanies most of these agreements. It shows that necessary fiscal, budgetary, labor, health, social and environmental policies initiated by governments have often resulted in frivolous lawsuits by investors before this unbalanced form of dispute settlement, where only investors can sue governments but not vice versa.

It also refers to numerous cases where ISDS arbitrations have penalized States for adopting regulations. For example, to raise the minimum wage, protect food security, access to generic and essential medicines, and reduce smoking as required under the WHO Framework Convention on Tobacco Control. Expansive interpretations by specialized corporate-sector arbitrators of terms like “investment,” “indirect expropriation,” and “fair and equitable treatment” are well beyond their legal meaning and outside what could be derived from Article 31 of the Vienna Convention on the Law of Treaties.

There is no justification for the existence of a privatized system of dispute settlement that is not transparent nor accountable and often ends with inconsistent, unpredictable and arbitrary awards that courts worldwide should refuse to implement as contrary to national and international ordre public. Over the past 25 years ISDS has undermined fundamental principles of the United Nations, state sovereignty, democracy and the rule of law. Far from contributing to human rights and development, they have resulted in growing inequality among States and within them. ISDS cannot be reformed. It must be abolished.

ISDS is not needed. Investors can have their day in court before national jurisdictions bound by Article 14 of the International Covenant on Civil and Political Rights, which, unlike ISDS, offer multiple appeal instances. Investors can also rely on diplomatic protection and State-to-State dispute settlement procedures. Rather than attempting to privatize the rule of law, what is necessary is a strengthening of the domestic and regional systems of public courts, ensuring their adequate funding.

FRIES: We have to leave it there. As we conclude this brief, many thanks to Independent Expert, Alfred de Zayas, and the Office of the High Commissioner of Human Rights. And thank you for joining us on The Real News Network.


RELATED:

Promotion of a democratic and equitable international order. Report to the UN General Assembly Aug. 2015
[ http://www.un.org/en/ga/search/view_doc ... l=A/70/285
http://www.un.org/en/ga/search/view_doc ... fLCQp.dpuf ]

International trade: UN expert calls for abolition of Investor-State dispute settlement arbitrations.
[ http://www.ohchr.org/en/NewsEvents/Page ... 10oCc.dpuf ]