A/HRC/30/44
and investment agreements hinder the State’s function of legislating in the public interest
and result in violations of human rights treaties including ICCPR, ICESCR, ILO and WHO
Conventions, they may be considered contra bonos mores and as such null and void
pursuant to article 53 of the Vienna Convention on the Law of Treaties (CVLT). Customary
international law on these issues should be revisited, including general principles of law
(Art. 38 ICJ statute) including good faith (Art. 26 Vienna Convention on the Law of
Treaties) and the concept of abuse of rights contained in the legislation of many countries.
15.
A review of the establishment of ISDS Tribunals and issues of conflict of interests
and a review of the jurisprudence of ISDS arbitrations, including the possibilities of
challenging arbitration awards will be discussed. In particular, the possibility and
modalities of refusing implementation of arbitration awards and the consequence of such
refusal will be explored, as well as the experience made by States in suing transnational
corporations for environmental damage (the polluter pays principles) and endangering
public health. In this context participants should consider whether the establishment of
parallel systems of dispute settlement are compatible with the State’s obligation to ensure
that suits at law are examined by independent tribunals. Separate and unaccountable dispute
settlement mechanisms seem to be contrary to the rule of law, in particular to article 14(1)
ICCPR.
7.
Pragmatic recommendations to make globalization work for human rights
16.
Global challenges include privatization, the role of the World Bank and its
International Center for Settlement of Investment Disputes, the WTO and the IMF, foreign
debt management, default, unilateral sanctions, extraterritorial application of laws, etc.
17.
Participants will discuss general issues about the impact of globalisation on human
rights, including the ideas of taxation of transnational enterprises and phasing-out of tax
havens and formulate recommendations thereon.
18.
Among possible recommendations are the modification or termination of free trade
and investment agreements that have led to violations of human rights. Participants
consider the grounds for denunciation, invalidity, suspension, modification or termination
of treaties laid down in the VCLT, including error (art. 48), fraud (art. 49), corruption
(art. 50), coercion (arts. 51 and 52), conflict with peremptory norms (art. 53), implied right
of denunciation or withdrawal (art. 56), breach (art. 60), supervening impossibility of
performance (art. 61), fundamental change of circumstances (art. 62), emergence of a new
jus cogens norm (art. 64), and the procedure to follow (arts. 65 et seq.)
19.
Participants may also consider the feasibility for the General Assembly or some
other body such as the ILO or WHO to request advisory opinions from the International
Court of Justice on the primacy of human rights over FTAs and on available mechanisms to
provide redress to victims.
Guiding Principles on business and human rights: Implementing
the United Nations ‘Protect, Respect and Remedy’ Framework –
excerpts
20.
The Human Rights Council endorsed the Guiding Principles in its resolution 17/4 of
16 June 2011.
29
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents