A/HRC/33/40
diligence, and might lead to the suspicion of bribery and corruption. Treaty-making cannot
be a game of trying to trick the other party into a toxic deal and then holding it hostage
through “survival clauses”. In sum, an investment protection mechanism cannot result in
the transfer of important components of sovereignty from the State to private parties.
Contracts that are unconscionable in their aims or in their consequences 42 are invalid and
must be declared null and void under article 53 of the Vienna Convention on the Law of
Treaties.
54.
Considering that jurisdiction is based on consent, it would be instructive to consult
the travaux préparatoires of bilateral investment treaties and free trade agreements and see
whether investors and transnational corporations exercised due diligence and full disclosure
and whether States understood the stakes and expressed valid consent. Treaties are made
with rational expectations on both sides. No State will consent to a treaty when negative
consequences are likely to outweigh potential benefits. If those dangers and negative
consequences are not spelled out, consent cannot be presumed.
VI. World Trade Organization rules and practice
55.
The Independent Expert wishes to thank the staff of the Secretariat of WTO for
devoting much time to addressing his questionnaire (see annexes III and IV) and explaining
in bilateral meetings many aspects of their important work.
56.
He also thanks the former Special Rapporteur on the right to food, Olivier de
Schutter, for sharing his insights in relation to the impacts of WTO rules and practice on the
right to food and on human rights more generally.
57.
The Independent Expert recognizes manifold human rights problems arising from
commercial activity, but places trust in the existence of multilateral organizations like
WTO. They have the opportunity and mechanisms to make trade work for human rights and
development, as exemplified, for instance, by the adoption of the Doha Declaration, which
is at the origin of an extended transition period for least developed countries exempting
them from the obligation to enforce patents for pharmaceutical products.43 The good will of
States parties and a change of mindset toward more international solidarity offers a starting
point.
58.
Since the third Ministerial Conference, held in Seattle in 1999, and the civil society
outcry against the adverse human rights impacts of commerce, WTO has become
increasingly aware of the human rights dimensions of trade. In the wake of the global food
crisis in 2008, the United Nations Secretary-General established the High-level Task Force
on the Global Food Security Crisis, involving more than 20 international organizations,
including WTO and the Office of the United Nations High Commissioner for Human
Rights (OHCHR), towards a coordinated response to the crisis. A trilateral initiative with
the World Health Organization (WHO) and the World Intellectual Property Organization
(WIPO) also allows for policy dialogue and experience sharing. Since 2001, WTO has
conducted a yearly Public Forum, 44 in which as many as 1,500 representatives from civil
42
43
44
GE.16-11938
The contract between Shylock and the Merchant of Venice, Antonio, was contra bonos mores,
because failure to reimburse a debt cannot have death as its consequence. By analogy, when a State
cannot repay an investor, the consequence cannot be interventionism as practised in the nineteenth
and twentieth centuries, when overt imperialism ruled, or more recently by IMF and central banks
when imposing “austerity measures” and “privatizations”; A/65/260 and A/69/273.
Annex IV.
Formerly known as “public symposium”,
www.wto.org/english/forums_e/public_forum_e/public_forum_e.htm.
13
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