MAI & Human Rights

Prepared by researchers and students of Harvard Law School under the auspices of the Human Rights Clinical Project Program in consultation with the Robert F. Kennedy Memorial Center for Human Rights:
Elizabeth Drake, Laura Benygar, Michael Ewing, Paul Boesen, Elizabeth Da Trindade-Asher, Rebecca Archer

THE MULTILATERAL AGREEMENT ON INVESTMENT: A STEP BACKWARD IN INTERNATIONAL HUMAN RIGHTS

The MAI Fundamentally Conflicts with the Goals and Objectives of International Human Rights Law

• International human rights law recognizes the fundamental rights of all individuals and obligates State action to protect individuals from both public and private violators of these rights.

The MAI recognizes investors’ rights–predominantly those of transnational corporations– with no corresponding obligations, and it restricts a State’s ability to protect and promote the rights of individuals.

• International human rights law recognizes the right of people to dispose freely of their natural resources and obligates States to adopt policies guiding the disposition of those resources for the benefit of the general welfare.

The MAI, however, limits the ability of States to formulate policy independently and impairs the rights of peoples to enjoy the benefits of their natural resources.

• Human rights law envisions the individual as an active participant in political decisions that affect the enjoyment of his or her rights.

The MAI impairs the right of individuals to participate in decisions impacting implementation of social, cultural and economic rights, and it excludes the individuals from the adjudication of disputes regarding disposition of resources and investment.

• Widely-ratified treaties, including the ICESR, CEDAW, and CERD, encourage the State to provide special protection for regional populations and socially disadvantaged groups in order to ensure real equality among individuals.

The MAI contains no provisions recognizing the special needs of such groups and regions and through its measures barring performance requirements precludes a State from effectively promoting the rights of these groups.

• Human rights law: This document specifically addresses international human rights law as embodied in the Universal Declaration of Human Rights (UDHR); the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social, and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention on the Rights of the Child; and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).
• The MAI’s National Treatment provisions limit a State’s power to promote the development of its own populace and resources as required under international treaties including ICESCR and ICCPR.
• The MAI’s Performance Requirements, Investment Incentives, and Employment Requirements provisions undermine a State’s ability to protect vulnerable groups and regions as demanded by human rights covenants.
• The MAI’s Most Favored Nation provision prohibits the State from utilizing human rights criteria in the formulation and execution of investment policies.
• The MAI’s dipute resolution procedures exclude individuals who may be harmed by the Agreement’s provisions, thus inhibiting procedural fairness.

Specific Provisions of the MAI Threaten Human Rights

National Treatment Provisions: Infringement upon State’s Obligations over Resources, Property, and Economic Development

The National Treatment provisions of the MAI require a State to grant foreign investors no less favorable treatment than it accords to its own investors. Thus, the MAI prohibits State protection and promotion of local enterprises or economic sectors. Yet, international human rights law repeatedly calls for such State efforts to specially protect the rights of its own people:

• ICESCR Article 2(3), recognizing the primacy of citizens, notes that developing countries, “may determine to what extent they would guarantee the economic rights recognized in the present covenant to non-nationals.”
• ICCPR Article 1(2) recognizes the right of all people to, “freely dispose of their natural wealth and resources…based upon the principle of mutual benefit.” ICCPR Article 47 reiterates that nothing in the Covenant shall be interpreted as “impairing the inherent right of all peoples to enjoy and utilize fully their natural wealth and resources.”
• The international community acknowledges this State obligation in the United Nations Declaration on the Right to Development, which stipulates in Article 2(3) that, “States have the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their…participation in development and in fair distribution of the benefits resulting therefrom.”

Additional Provisions: Prohibition of Promotion of the Local Economy, Employment, and Equal Opportunity

Performance Requirements, Employment Requirements, and Investment Incentives provisions of the MAI go beyond granting foreign investors National Treatment by prohibiting any restrictions on foreign investment in areas potentially essential for home country development. For example, under the MAI, States are not allowed to require foreign investors to hire any given level of local personnel, assure a certain level of domestic content, share technology, or achieve any given level or value of production, employment, or research and development spending. States are also prohibited from encouraging any of the above behaviors through investment incentives. Such limits on State regulatory power will inhibit a State’s ability to conform with important human rights obligations:

• CEDAW, CERD, and the Convention on the Rights of the Child require States to promote the economic and social advancement of women, minorities, and children. CERD, for example, requires anti-discrimination employment regulations in Article 2(1)(d) and authorizes affirmative action programs in Article 2(2). Yet such State regulations and programs may be prohibited under the MAI as “investment-distorting” employment or performance requirements.
• The ICESCR requires that rights under the Covenant be progressively implemented according to a State’s resources, “without discrimination of any kind as to race, color, sex, language, religion,…or other status.” States will not be able to equally protect and affirmatively implement such rights if the MAI prevents them from directing the benefits of foreign investment to particularly needy regions and groups in their territories.

Most Favored Nation Provision: Restrictions upon Human Rights Enforcement

The Most Favored Nation provision of the MAI prevents States from treating investors or investments of one contracting party less favorably than investors or investments of another contracting party.

By denying States the right to use an investor’s human rights record or that of its country of origin as criterion for differential treatment, the MAI undermines one of the bases of human rights enforcement.

One of the fundamental principles of human rights law is the recognition that human rights violations are not solely of domestic concern. Human rights violations have been submitted to international scrutiny, creating bilateral and multilateral initiatives capable of dramatically changing human rights policies in violating nations.

For example, direct action aimed at corporations doing business in South Africa played an indispensable role in weakening apartheid. The MAI would render investment considerations independent of all human rights concerns and would undermine concerted international action to address such abuses.

The MAI’s Dispute Resolution Procedures also Endanger the Protection of Human Rights

• The MAI grants investors wider jurisdiction and more freedom in forum choice that it grants to States.

Individuals and groups, whose rights may be directly affected by arbitration decisions, are denied a voice as direct participants or third parties, and cannot gain access to the proceedings until the final award is issued.

• Tribunal members, unlikely to have experience as judges or in fields of law besides trade, are given little guidance from the MAI as to the interpretation and precedential value of international and national laws.

There are no mechanisms in the MAI to assure judicial competence, impartiality or independence, as required of judicial systems under ICCPR, Article 14(1).

• The binding effect of arbitration awards (which may include monetary damages or restitution in kind), their non-appealability, and the confidentiality of all dispute resolution proceedings go against basic human rights law tenets. Such tenets are embodied in the ICCPR’s Article 2(3), which guarantees all individuals an effective remedy when their rights are violated and includes determination by competent authorities as a component of the remedy’s effectiveness.
• State laws designed to guarantee the fundamental rights of its people can be challenged by foreign investors under the MAI. The MAI increases investors’ power and rights, yet creates no comparable protections for human rights.

Information Regarding OECD Member-Nations who Are Ratifiers of Relevant Human Rights Treaties

Key:

YES-indicates those countries which have ratified the human rights treaties addressed in this paper

Signed-indicates those countries which have signed, but not yet ratified the aforementioned treaties

Neither-indicates the country which has neither signed nor ratified the relevant human rights treaties
 

Contact: For more information on this work in progress, you may contact:

MAI Clinical Project, Harvard Law School,
Pound 401, Cambridge, MA 02138
Robert F. Kennedy Memorial Center for Human Rights, Abigail Abrash,
1367 Connecticut Avenue, N.W., Washington, D.C. 20036;
(Tel)202-463-7575;
(Fax)202-463-6606
(E-Mail) hrcenter@rfkmemorial.org