We cannot afford to trade away democracy: Alfred de Zayas, UN independent expert


Shreerupa Mitra-Jha | May 16, 2015 | Geneva

Cuba-born Alfred de Zayas, an American lawyer, writer, activist, expert in human rights and international law, has been the UN Independent Expert on the Promotion of a Democratic and Equitable International Order, also known as Special Rapporteur, since 2012. He worked as a senior lawyer with the Office of the UN High Commissioner for Human Rights during 1981-2003. In an wide-ranging interview with Shreerupa Mitra-Jha, he speaks about several global concerns that especially touch upon developing countries like India.

You have called for a moratorium on  mega trade deals like the Transatlantic Trade and Investment Partnership (TTIP) as well as a trans-pacific deal being negotiated between the US and Japan. You have argued that such deals carry the threat of real human rights abuses. Could you elaborate on that please?

The elaboration and negotiation of these agreements have been conducted in secret, excluding key stakeholders like labour unions, consumer unions, environment protection groups and health professionals. If the agreements are to have any democratic legitimacy, it is imperative that they be openly discussed and that both the citizens and their parliaments take active part in the process, as envisaged in Article 25 of the International Covenant on Civil and Political Rights. 

Moreover, it is not at all certain that states can waive their fundamental function to protect the public interest or delegate the settlement of disputes to arbitration tribunals that are not independent, transparent, accountable, or appealable. In many countries such delegation of state functions is clearly unconstitutional. Nor is there sufficient empirical evidence to convince unbiased observers that the inclusion of ISDS [Investor-State Dispute Settlement] provisions into free trade agreements  [FTAs] have in the past demonstrated “added value” or had any significant impact on the flow of foreign investment into a given country. Such ISDS provisions constitute a considerable financial and policy risk, notwithstanding the claims of ISDS advocates. Free trade and investment agreements would be more attractive if the ISDS provisions were eliminated.

The bottom line is that we have been witnessing an assault on the ontology of states as protectors of the public interest and regulators in the fields of labour, health, and the protection of the environment.
While foreign direct investment may be desirable, we should not enter into FTAs at any price, and not when FTAs are based on a philosophy of market fundamentalism. We cannot afford to trade away democracy. What we all want is the rule of law – not the rule of lawyers – and the primacy of human rights over the rights of the investor.

Could you give some historical instances where major corporations have succeeded in blocking government policies with the help of secret arbitration tribunals?

There have been many frivolous arbitrations where corporate greed has won over justice and common sense. Under several BITs [bilateral investment treaties] and NAFTA [North American Free Trade Agreement] arbitration tribunals, corporations have successfully sued governments and provincial governments for the adoption of health and environmental protection legislation – forcing the governments to roll back their protective regulations and pay damages to the corporations. This was certainly never envisaged when the BITs and NAFTA were adopted. Take Canada as an example. We know of many cases such as Ethyl vs Canada, SD Myers vs Canada, Dow Agro Sciences vs Canada, and Chemtura Corporation vs Canada. Admittedly, not every arbitration under NAFTA is successful, but such arbitrations have a “chilling effect” – that is, they induce a “regulatory chill” with governments that fear expensive and protracted litigation.

According to a 2009 survey of 33 ISDS cases, claims in the billions of dollars were raised. Right now there are many pending cases concerning the availability of generic drugs, the protection against toxic waste and the dangers of fracking and other extractive activities. It is surrealistic to think that after Chernobyl and Fukushima a sovereign state cannot phase out nuclear energy without being sued. Indeed, Vattenfall is suing Germany before the World Bank's International Centre for the Settlement of Investment Disputes (ICSID) in Washington DC. Pending are also the costly arbitrations of Philip Morris against Australia and Philip Morris against Uruguay – because the health-protection measures of these countries would undoubtedly lead to reduced smoking and hence reduced profits for the tobacco industry. This is not only unconscionable – it is contra bonos mores, and any international treaty containing such provisions should be declared null and void as incompatible with national and international ordre public (article 53 Vienna Convention on the Law of Treaties). The issue also arises of civil and criminal liability on the part of the tobacco industry, which adamantly pushes its toxic product and causes the death of countless persons worldwide. Failing to take measures against this threat to public health would entail a violation by the state party concerned of Article 6 (right to life) of the International Covenant on Civil and Political Rights [ICCPR].

Many developed countries are engaging in higher standards of intellectual property (IP) rights protection through bilateral agreements or FTAs to bypass flexibilities in multilateral agreements like the WTO-administered TRIPS flexibilities for protecting public health. There is a lot of pressure, for instance, from the pharmaceutical industry for stricter patent laws in India, the largest supplier of generic medicines. What is your opinion on the matter?

Once again, Article 6 of ICCPR mandates all states parties to promote, protect and fulfil the right to life. To the extent that a pharmaceutical corporation prevents the production of affordable generic drugs and as a consequence thousands or even millions of human beings perish, we have to do with criminal responsibility. Many countries have legislation concerning tort liability for refusal to rescue persons in danger. In some countries penal legislation imposes a duty to act to assist persons in danger. An omission then constitutes a criminal offence. Everybody agrees that research by the pharmaceutical industry should be encouraged and that there is a legitimate claim to patent new pharmaceutical products. But it is unconscionable to make such products so expensive that people who desperately need them cannot afford them. Nor should the pharmaceutical industry be allowed to delay the entry of generics by the practice of ‘ever-greening’ their products and patents.

Conflict of interest will be a hotly debated topic in the upcoming World Health Assembly. Some member states have argued that treating international business associations such as the International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) as NGOs and allowing them to attend the WHO’s Expert Committee on Specifications for Pharmaceuticals, a norm-setting body, is a direct conflict of interest. What are the implications of maintaining the autonomy of a global body, like the WHO, for the right to health?

In the human rights field we are accustomed to see dubious NGOs. Some of them are referred to as ‘gongos’ or government NGOs, but others are just as toxic, when they are fully financed by corporations or by special-interest lobbies that only have profit and “business-friendly” rights in mind and do not have a commitment to human dignity, from which all human rights derive.

The WHO and other organisations owe it to us and to themselves to defend and maintain their autonomy. Alas, big business has already succeeded in “domesticating” not only some NGOs, but also exercise disproportionate influence on the agenda of inter-governmental organisations. Donations are good and necessary – but not when there are too many strings attached.

You have worked a lot on human rights and indefinite detention. What are your brief observations on the matter because the phenomenon of indefinite detention is obviously not confined to autocratic regimes but seems to be cutting across political settings?

My 2005 article in the Review of the International Committee of the Red Cross (https://www.icrc.org/eng/assets/files/other/irrc_857_zayas.pdf) is still very much in point. In that article and in subsequent publications I argue for the uniform application of international law and against the practice by powerful states to place themselves above international law, to claim exceptionalism, to apply international norms à la carte. The jurisprudence that the UN Human Rights Committee established in the Uruguayan, Chilean and Argentinean cases concerning the military juntas and their “anti-terror legislation” and “prompt security measures” are just as valid and applicable in the context of renditions, secret detention centres, and, of course, Guantanamo. There are plenty of scholars and human rights activists that say the same thing, but the power equation is tilted in favour of the hegemony of a few. I say this in my capacity as professor of international law and not in my capacity as UN Independent Expert.

You have been an indefatigable voice for human rights and have worked extensively on the Armenian genocide, the Holocaust, the US-run detention centres at Guantanamo Bay, Iraq War, the right to homeland as a universal human right etc. What are the subjects most occupying you now, apart from the mega trade deals issue?

The implementation of the right of self-determination as a conflict-prevention strategy. Over the past 70 years many of the national, regional and international conflicts have been associated with the denial of self-determination – whether we think of Bangladesh, Biafra, Kosovo, Abkhazia, Nagorno Karabakh, Palestine or the Ukraine. It is crucial to address the grievances of persons living under occupation, indigenous peoples, minority populations and other non-represented peoples before it comes to armed conflict. This was a subject of my 2014 report to the General Assembly (A/69/272), and I consider it an issue of continuing relevance for my mandate.

Another obstacle to the realisation of a more democratic and equitable international order is the undemocratic activities of lobbies that denature the proper functioning of governments in many countries. Already in 1961 US president Eisenhower warned about the dangers to democracy posed by the “military-industrial complex” – a body that disproportionately impacts federal and local government, universities, research institutes and tilts the playing field away from peace-making and conflict-prevention and toward politics of bully and bomb, refusal to negotiate, intransigence and war-mongering, all of this in contravention of Article 2(3) and 2(4) of the UN Charter and of Article 20 of the International Covenant on Civil and Political Rights. This was the subject of my 2014 report to the Human Rights Council (A/HRC/27/51). The growing military expenditures significantly increase the danger of conventional and nuclear confrontation and deprive the world of vital resources needed to promote education, health and the solution to global problems such as climate change.

In future reports I will also address the potential role of the WTO, the IMF and the World Bank to advance and not hinder the enjoyment of civil, cultural, economic, political and social rights by everyone on this, our common planet. By the way, I do not see myself as a lone wolf in the prairie. I work together with my rapporteur colleagues – the Rapporteurs on Food, Health, Housing, Freedom of Expression, Freedom of Peaceful Assembly, Independence of Judges and Lawyers – and with the expert working groups including the WG on Business and Human Rights.


(The interview appears in the May 16-31, 2015 issue)



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