A/HRC/30/44
52.
Pursuant to article 28 of the Universal Declaration of Human Rights, States shall
ensure “a social and international order in which the rights and freedoms set forth in this
declaration can be fully realized”. This is reinforced in article 2 of the International
Covenant on Civil and Political Rights and article 2 of the International Covenant on
Economic, Social and Cultural Rights.
53.
The adoption of 10 core international human rights treaties and countless resolutions
and declarations of the General Assembly, the Economic and Social Council and the
Human Rights Council, pertinent ILO and WHO Conventions, the emergence of a system
of regional human rights courts capable of adopting binding judgments, the 1993 Vienna
Declaration and Programme of Action, the Millennium Development Goals – all these
instruments over a period of many decades prove that a customary international law of
human rights has emerged, manifesting opinio juris and international consensus on the
primacy of human rights. Accordingly, globalization and targeted investment ought to
foster an environment where human rights are fully realized through the State’s regulatory
functions. Alas, international investment agreements are usurping State functions as if the
only rights were the rights to trade and to invest.
54.
In the field of intellectual property, there is consensus that it deserves protection
which must occur, however, in tandem with human rights considerations. Twenty-first
century humanity functions on the basis of thousands of years of freedom of knowledge, or
the free interchange of ideas and inventions. While there is justice in rewarding research
and patenting new pharmaceuticals and inventions, monopolies must not contribute to
greater inequality and Governments should regulate to ensure flexibility and prevent
“evergreening” practices. Access to affordable medicine is essential to protect the right to
life, and refusal to provide such affordable medicine is tantamount to the criminal offence
of denial of humanitarian aid60 or assistance to persons in danger. In other words,
knowledge cannot be appropriated for profit, privatized or commoditized, but rather shared
in international solidarity. Sharing knowledge without fee, as the European Organization
for Nuclear Research shared the World Wide Web, is in the best traditions of civilization.
55.
Globalization cannot be allowed to become the grand global casino where investors
rig the system to guarantee that they always win. A democratic and equitable international
order is not possible if this “Hotel Brave New World” is allowed to ensnare States, letting
them check in but never leave. Since the siren call of foreign direct investment has proven
deceptive, Governments must move away from easy mythologies and demand empirical
evidence of job creation and reject a “race to the bottom” in human rights terms. With good
will, States can adjust international investment agreements for their benefit.
56.
Transnational enterprises operate in the territory of States that are bound to the
Charter of the United Nations, akin to a world constitution, whose Purposes and Principles
are paramount for the achievement of a democratic and equitable international order.
Transnationals cannot create a new legal order beyond the Charter of the United Nations,
nor be legibus solutus or exempt from the rule of law, general principles of law and basic
codes of conduct. Transnationals do not exist in a vacuum and are bound by the
international human rights regime. Even their most cherished impact on today’s societies —
creating jobs — is only possible thanks to laws that ensure the orderly functioning of
market transactions, the clear assignment of property rights and reliance on effective courts.
They operate in the context of accountability and checks and balances that took centuries to
develop and cannot be waived. Wherever transnational corporations are registered or carry
out operations, the home and host States have the responsibility to regulate them to prevent
violations of human rights.
60
18
www.icrc.org/eng/resources/documents/misc/57jq32.htm.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents