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Can the UN make human rights ‘fit for purpose’ in the modern economy?

In 2020, will 2014 seem like a turning point in the way the human rights system began to properly adapt to the challenges posed by the modern economy?  In June this year the Human Rights Council passed a resolution establishing a new intergovernmental working group to establish a treaty to address corporate-related human rights violations.   Before last week’s third UN Forum on Business and Human Rights a member of the pre-existing UN Working Group on Business & Human Rights – whose members have so far been silent on the June  – is now supportive of the development of a treaty.

So, does this mean real change is coming?  Will 2015 usher in the start of a meaningful adaptation of the international human rights system in order to properly protect people from the worst aspects of today’s modern economy?

Since the new Intergovernmental Working Group is not yet fully formed and their first meeting will not be until early July 2015, it is clearly too early to tell.  What is clear is that over the previous half century representatives of UN Member States and progressive international lawyers, often working closely with a wide range of human rights organizations and grassroots groups, have successfully deployed great skill and creativity in order to periodically update our system of international human rights law to meet evolving societal expectations of how human rights should be respected, protected and fulfilled.  The challenges of effectively doing the same now in the context of corporate-related human rights violations may be especially unique and complex, but the issue is too important for all actors not to get involved and, in good faith, explore every approach required to update and improve the international human rights system where it’s needed most.

While it should be broadly welcomed that the UN is now beginning to focus on how to tackle corporate-related human rights abuses head on, there is much more to do to ensure that the value of people’s lives really is held in higher esteem than corporate profits.  For example, at the September session of the UN General Assembly the annual report of the UN Special Rapporteur on the Right to Health outlined in stark terms the negative impacts that investment agreements and investment arbitration have on the realization of human rights:

International investment agreements and investor-State dispute settlement systems benefit transnational corporations at the cost of States’ sovereign functions of legislation and adjudication. Existing international investment agreements have no checks on the activities of transnational corporations and many do not recognize States’ prerogative to legislate and enforce health-related laws. This power asymmetry is perpetuated by the fact that States often have no ability under international investment agreements to initiate disputes against transnational corporations for violating the right to health. Furthermore, investor-State dispute settlements suffer from bias, opacity and arbitrariness. They prevent affected third parties from gaining access to the system to demonstrate the violation of the third party’s right to health and receive a remedy.

Indeed,  Ecuador’s perception that investors in their country had gravely abused the international arbitration investment regime was the cornerstone of their impetus to push to create, and seek other’s support for the passage of, Human Rights Council Resolution 26/9.

Beyond investment arbitration, the very trade architecture that advances trade liberalization – free trade agreements, (such as the controversial Trans Pacific Partnership and Transatlantic Trade and Investment Partnership) and the economic processing zones that are the most far-reaching aspects of this economic ideology – are similarly part of the puzzle of bringing economics into line with human rights.  Other examples of where economic activity runs counter to the realization of human rights are the practices of high frequency trading, unregulated derivatives markets, and predatory lending that were so evidently major contributors to the global finance crisis of 2008, which in turn undermined the security of human rights across the world.

In short, while the new UN process to establish binding normative standards that bring greater corporate accountability for human rights related abuses is very welcome, if human rights are ever to be ‘fit-for-purpose’ in the modern economy, States must also holistically evaluate and adequately devise means of ensuring that the whole interconnected economic system operates in the interest of human rights.

Dominic Renfrey is Programme Officer at the International Network for Economic, Social and Cultural Rights -ESCR-Net.

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December 2017
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