Human Rights Protections in International Agreements Contents

3Human Rights Issues in Different Types of Agreements

13.There is a strong case for requiring minimum standard processes, practices and clauses to protect and promote human rights in all international agreements—this would ensure that all agreements had the requisite scrutiny and content to prevent against international agreements facilitating human rights abuses. However, while some standardisation may be desirable, as we discuss below, a one-size-fits-all approach to international agreements—whether in terms of parliamentary scrutiny, standard human rights clauses, analysis/impact assessments or other requirements—is perhaps unwise.

14.The content and nature of international agreements can vary enormously. Generic clauses about mutual commitments to the international human rights framework and the Rule of Law might be suitable for a wide-ranging overarching political agreement, whereas a specific extradition agreement might need tailored protections, for example, relating to the use of the death penalty, the right to a fair trial, or torture (or evidence obtained by torture). Specific considerations might be appropriate for trade agreements to ensure that trade liberalisation does not prevent a state from maintaining or improving human rights and workers’ rights standards–or is not used to facilitate modern slavery. Similarly there might be concerns that products exported should not be used in human rights abuses (such as torture, genocide, repression). Other agreements might raise very few human rights considerations and so warrant lesser focus from Parliament and not require clauses to protect or promote human rights.

15.The paragraphs below highlight some of the issues raised in our evidence in relation to trade agreements, data-sharing, extradition and mutual legal assistance.9 However, these are purely indicative–other areas exist that could also require a specific focus. The FCO highlights the Government’s normal practice in relation to different types of treaties; we consider it would be useful to ensure this practice is standardised and any departure from best practice is properly scrutinised by Parliament.

Data Sharing

16.Data protection, data sharing and data flows were raised as a key human rights concern in future international agreements. The Institute for Human Rights and Business argued that the UK needed to ensure it had an adequacy agreement with the EU for data-sharing and data flows and that the UK should keep the data protection standards set out in the GDPR.10

17.Other submissions highlighted concerns around the lack of international data-sharing standards when it came to intelligence cooperation, arguing that specific guarantees should be put in place to ensure that agreements on this subject contain adequate protections, such as due diligence risk assessments when complying with a request for information under such arrangements.11

18.The FCO’s evidence said:

“The UK is committed to ensuring that personal data is protected, while enabling the exchange of data over international borders. The ability to collect, share, and process personal data is crucial for consumers, business and public sector, including law enforcement organisations… As an EU member state, the UK currently benefits from the free flow of data, including data collected for law enforcement purposes, with other EU MS and those third countries that the EU has deemed adequate. Once the UK has left the EU, we will need to establish our own regime for the international transfer of data. To the extent that these arrangements involve entering into new international agreements, the UK would ensure that they were consistent with our human rights obligations. The UK will remain able to share data with other states in relation to national security and counter-terrorism, subject to existing legal obligations and safeguards.”12

Extradition

19.Extradition agreements can obviously raise specific human rights issues, for example if an individual to be extradited might not face a fair trial, or might face mistreatment or death row phenomenon. Specific protections are therefore required in agreements establishing extradition procedures. In relation to extradition agreements, the FCO submission set out the background:

“Human rights considerations are and will continue to be an important aspect of the negotiation of extradition treaties. In our bilateral extradition agreements, it is common practice to include a specific reference to respect for human rights and the rule of law as part of the legal context against which the treaty must be interpreted. It is usual to provide that an extradition request can be refused where extradition would breach the human rights of the person sought. Additional protections, including in relation to the death penalty, are included where relevant. A decision on an extradition request will be subject to the protections set out in domestic law, including the Extradition Act 2003 and the Human Rights Act 1998. Every requested person has the ability to challenge extradition before the domestic courts.”13

Mutual Legal Assistance

20.Mutual Legal Assistance also requires specific human rights consideration. The FCO’s evidence sets out some of the issues that need consideration in the negotiation and implementation of such Agreements:

“Human rights issues form an important part of the legal context against which MLA treaties should be interpreted. Human rights concerns will often be included in the grounds for refusal or postponement of assistance. These could include the risk of prosecution because of a person’s characteristics such as race, gender, or sexual orientation. MLA agreements will also address confidentiality, limitations on use, and data protection. UK practice is to specify in MLA treaties that the provision of assistance by the requested State is subject to its domestic law and therefore the provision of assistance by the UK will be subject to domestic human rights protections.”14

Trade, Investment, Supply Chain and Modern Slavery

21.Trade Agreements have the potential both to promote and to undermine human rights and there is strong evidence that these agreements require a specific human rights focus—not least given the wide variety of human rights affected by trade and investment agreements. As the Institute for Human Rights and Business noted:

“Cross-border trade in goods, services, and the movement of people across borders, can all have beneficial impacts for human rights. For the beneficial impacts to be realised and harmful impacts to be mitigated or eliminated, it is important that trade is rules-based. These rules should be consistent with international standards.”15

22.The Trade Justice Movement highlighted how trade agreements can interfere with the ability of a State to regulate domestically:

“They may affect human rights, since regulations can concern health standards, labour rights and data privacy. Indeed, these are all areas which modern trade agreements cover”.16

23.Moreover, as the Equality and Human Rights Commission noted:

“The UK’s National Action Plan on Business and Human Rights, last updated in 2016, contains a commitment to ‘consider the possible human rights impacts of free trade agreements, including where these include investment protection provisions, and take appropriate steps including through the incorporation of human rights clauses as appropriate’.”17

24.The Institute for Human Rights and Business also usefully highlighted the relationship between trade and business standards, modern slavery, supply chain and export credit rules:

“UK-based companies which are affected by international agreements, including trade agreements, may not have directly caused adverse human rights impacts abroad, but they may have enabled or facilitated abuses by their failure to exercise sufficient due diligence with regard to specific conduct of their partners, subsidiaries, associates, or suppliers located in other jurisdictions. This understanding is embodied in the UN Guiding Principles on Business and Human Rights as well as the OECD Guidelines for Multinational Enterprises, two standards which the UK Government has strongly supported since their inception.18

The UK Government already requires companies to undertake human rights due diligence and/or disclosure based on international standards–such as the requirements of the 2015 Modern Slavery Act, the rules governing export credit19 or new commitments announced relating to those businesses in the government’s own supply chain.”20

Investor-State Dispute Settlement

25.Investor-State Dispute Settlement (ISDS) was a particular area of concern. Witnesses generally agreed that the current system was not working—it was extremely expensive and did not adequately ensure that human rights were protected.21 There was evidence that it was preferable to rely on recourse to the general court system to resolve disputes, although that in turn relies of good standards of the rule of law in the domestic courts.22

26.The Trade Justice Movement explained:

“Modern trade agreements often include Investor-State Dispute Settlement (ISDS) mechanisms, which allow investors to sue host states for any actions which harm their profits. [ … ]

ISDS uses a ‘parallel’ legal system of private arbitration courts, which unlike domestic courts, are not bound to recognise or take account of states’ obligations on human rights. As the UN’s Independent Expert concluded, ISDS does “not oblige the arbitrators to give priority to human rights treaty norms.”23 This means that a state could be successfully sued for enacting legislation to protect human rights.”24

27.There are significant concerns that not only do the arbitration courts used in ISDS not meet the standards required by the rule of law, but they are also expensive for the tax payer (since there is a high cost even if the state successfully defends a case against an investor). There is growing evidence that States are discouraged from introducing regulatory measures, for example to promote and protect human rights, labour rights and health due to the “regulatory chill” caused by the perceived threat of legal challenge under these investment rights. As the Trade Justice Movement noted:

“For example, a government might choose not to introduce popular anti-fracking legislation if foreign firms have already invested in fracking in that country, for fear of the financial repercussions. This can also affect human rights legislation: indeed, there are examples of ISDS being used to challenge discrimination laws in South Africa,25 labour rights in Egypt26 and health regulations in Australia.27 These cases are all related to important human rights (non-discrimination, labour rights and health) which are under threat from ISDS challenges in trade agreements.”28

28.Dr Sam Fowles said:

“The tribunals as they stand are incredibly problematic in terms of the rule of law. I am sure my colleagues will give many examples of that. In response to opposition to CETA, the EU has introduced the investment court system, the ICS, which is slightly better but not much better.”29

Dr James Harrison said:

“The economic analysis for having investor-state dispute settlement is not compelling. There is no compelling reason to show that investors invest more because of the presence of these treaties. You would want compelling evidence before you signed up to them, because they give powerful rights to corporations to sue, as Sam was saying. I recently wrote a book with 12 other academics arguing that we should abolish ISDS. [ … ]

We are now at a period where the whole system of investor protection is under scrutiny. There are reform efforts going on around the world. There are different ideas about what should happen. The UK should pause very carefully before deciding what it does. [ … ]

You want to look very carefully at this: do we want international arbitration panels making decisions on these issues? Why in a country such as the UK, where we have very good judicial systems, would we want cases potentially decided outside our legal system?
[ … ]

There are lots of different concerns. One of them is that these tribunals are ad hoc, so there is no system of appellate review, so you get divergent opinions about key legal principles. There are coherence arguments. Then you have more fundamental questions about whether investors should have the right to sue for very large amounts of money through these international processes and whether their rights should be privileged. Why can they not take out insurance to insure themselves against the political risk of operating in risky countries? Why, in essence, does it come out of the public purse rather than the private purse of the companies that are operating there?”30

29.Human rights must be protected in investment agreements and any litigation arising from those agreements. There are clear human rights and rule of law concerns with arbitration as a means of Investor-State dispute settlement. Investor rights should not be privileged over human rights. Any system established for dispute settlement must be fair, accessible and cost-efficient.


9 See in particular Institute for Human Rights and Business (HIA0005) and Hong Kong Watch (HIA0006)

10 Institute for Human Rights and Business (HIA0005)

11 See for example the written evidence from Mrs Sybil Gilbert (HIA0002)

12 Foreign and Commonwealth Office (HIA0016)

13 Foreign and Commonwealth Office (HIA0016)

14 Foreign and Commonwealth Office (HIA0016)

15 Institute for Human Rights and Business (HIA0005)

16 Trade Justice Movement (HIA0014)

17 Equality and Human Rights Commission (HIA0017); HM Government, Good Business, Implementing the UN Guiding Principles on Business and Human Rights, Cm 9555, May 2016 [accessed: 8 January 2019].

18 Institute for Human Rights and Business (HIA0005). Human rights due diligence involves companies identifying actual and potential risks and impacts of their actions across their operations and their supply chains and services they use. Companies should assess risks; identify their leverage, responsibility, and actions; mitigate risks and devise remedies; and monitor, review, report, and improve performance.

19 Gov. UK, UK Export Finance: Environmental, Social and Human Rights Policy. IHRB’s CEO, John Morrison, serves on the Advisory Council for UK Export Finance.

20 Gov UK, Speech: PM G20 House of Commons statement: 3 December 2018

21 See, for example, evidence from Amnesty International UK (HIA0015)

22 See, for example, Q2

23 United Nations, General Assembly, Promotion of a democratic and equitable international order,
5 August 2015, p 4

24 Trade Justice Movement (HIA0014)

25 See Foresti v South Africa, Italian investors challenged a law designed to advantage disadvantaged ethnic groups

26 See Veolia v Egypt, French multinational challenged minimum wage laws

27 See Philip Morris v Australia, tobacco giant challenged cigarette packaging laws

28 Trade Justice Movement (HIA0014)

29 Q2

30 Q2




Published: 6 March 2019