Inter Press Service | 20 July 2004
Bilateral Treaties Undermine Rights
By Gustavo Capdevila
GENEVA, Jul 20 (IPS) - Bilateral trade treaties have hit stormy waters in recent weeks, drawing criticism from French President Jacques Chirac, a leading world economist and human rights groups alike.
U.S.-backed trade agreements bore the brunt of the attacks.
The Europe-Third World Centre (CETIM) and the American Association of Jurists (AAJ) lodged serious criticisms of bilateral agreements on free trade and the promotion and protection of investments, describing them as "weapons of mass destruction" for national and international public law and human rights law.
Their joint statement was presented to the Subcommission on the Promotion and Protection of Human Rights, which will meet in Geneva from July 26 to August 13.
The Subcommission is comprised of independent experts who advise the Human Rights Commission — the main United Nations body dealing with human rights issues.
The human rights groups echoed Chirac’s letter to the 15th International Conference on AIDS in Bangkok last week, where the French president complained that the United States is demanding that developing countries stop manufacturing generic antiretroviral drugs as a pre-condition for signing bilateral free trade agreements.
Chirac said this policy contradicts provisions in the Doha Declaration on access to drugs for poor nations, approved at the November 2001 World Trade Organisation ministerial conference in the capital of Qatar.
The conditions set by the United States amount to "moral blackmail" said Chirac in his letter read to the AIDS conference by Xavier Darcos, French Minister delegate for Cooperation, Development and Francophony.
Joseph Stiglitz, former chief economist at the World Bank and a former advisor to U.S. president Bill Clinton (1993-2001), concurred with that view, stating that Washington uses its economic might to help the big pharmaceutical companies protect their products from generic competitors in all of its bilateral trade agreements.
The approximately 2,000 bilateral treaties in force worldwide are more detrimental to human rights than current or planned international or regional treaties, says the statement by CETIM and the AAJ.
Agreements between nations are a result of "tactics by the centres of planetary economic and political power, particularly the United States, which consists of negotiating one by one with weak and/or corrupted governments ready to give" in, say the groups.
But the same happens on a regional level, as the United States has "got the CAFTA (Central American Free Trade Agreement) approved against the clock in Central America in order to be in a better position to negotiate the FTAA (Free Trade Area of the Americas)," the statement continues.
"And in the FTAA negotiations, the proposal of a ’light’ FTAA is an application of the same tactics to leave to bilateral negotiation the most controversial questions," the groups maintain.
CAFTA is still pending parliamentary approval by all of the nations involved in the negotiations. The FTAA is a U.S.-sponsored initiative involving all of the nations in the Americas with the exception of Cuba.
Alejandro Teitelbaum, AAJ representative in Geneva, said bilateral agreements form a "thick weft" that "allows neo-liberal policies to circulate freely on a planetary scale" as a consequence of the principles of a trade system which automatically extends preferential treatment to all the members of a treaty.
This system of "communicating glasses"...."disintegrate(s) national economies and provoke(s) grave social harms," added Teitelbaum.
He described such agreements as a ’’regression to a sort of feudal or corporative law, opposed to national and international public law, that works in the exclusive interest of the big transnational capital and those of rich states and to the detriment of fundamental rights of the so-called peripheral states and their peoples.’’
The document submitted to the Subcommission on Human Rights also deals with bilateral Investment Promotion and Protection Agreements (IPPAs).
Under these treaties, foreign investment enjoys most favourable treatment. Another benefit is the principle of national treatment where all advantages granted to national investors must be extended to foreign investors as well.
IPPAs incorporate a "most favoured nation" clause which establishes that advantages mutually agreed between two states are automatically extended to treaties they enter into with other states wherever such a clause is present.
IPPAs also stipulate that compensation must be paid in any case of expropriation or other measures of equivalent effect — an ambiguous concept which cost Mexico a massive fine imposed by a North American Free Trade Agreement (NAFTA) tribunal in the 1990s. (NAFTA links Mexico, the United States and Canada).
A U.S. company, Metalclad, sued the Mexican state in 1996 for violating NAFTA rules when the government of the central state of San Luis Potosí prevented the firm from opening a toxic waste dump there.
Under NAFTA rules, the refusal was considered "expropriation", and the Mexican government was forced to pay 16.7 million dollars in compensation.
The CETIM and AAJ statement reminds governments that "if there is the political will to do so, there is a way out from the trap" of bilateral treaties "to restore national and international public law and promote human rights.’’
They recommend, for example, that complaints be lodged against the treaties, "invoking the pre-eminence of a hierarchically higher norm", and restoring "the territorial competence of national tribunals."
Teitelbaum underlined that invoking a law alone cannot produce the miracle of reverting a complex and difficult situation.
However, it could help raise peoples’ awareness to the fact that they have been deprived of their most basic civil, political, economic, social and cultural rights, and that these will only be recovered through their own action, he concluded.
(END/IPS/WD/HD IP IF/TRASP-SM-SW/GC/DM/04)