U.S. Reviewing Urgent Question: Link investor rights with duties?

“We feel this is a critical moment to take a fresh approach to bilateral investment treaties and the investment chapters of trade agreements….We look forward to working with the administration to [establish] a whole new framework for the governance of international investment that protects the public interest in the United States and abroad.”

So says a “collective statement” by representatives of labor, environmental, and economic development groups in a report prepared at the administration’s request for its review of U.S. policy on cross-border investment.

Among the concerns raised in the statement was that current investment rules “provide sweeping protections for U.S. investment abroad, without commensurate investor obligations,” thereby facilitating and accelerating the movement of U.S. jobs, production capacity, and technology.

“Strong labor provisions and a record of effective enforcement of those provisions should be a precondition for any negotiations, [but] they are not enough,” the statement adds. “A whole new framework is needed to reverse the devastating impacts of offshoring on U.S. workers and communities.”

Any such reversal will require detailed revisions of a 2004 document called the “Model BIT,” which serves as the official guide for negotiating bilateral investment treaties and the investment chapters of regular free trade agreements.

The present model is tilted too far in favor of investor rights. Among the recommended changes to restore balance, all opposed by business groups, are these:

-- Favoring cress-border investors with no rights more extensive than those granted investors under the U.S. constitution.
-- Clarifying the meaning of “indirect expropriation” (against which the investor is protected) so as to ensure, for example, that a government will not be restrained from, and penalized for, improving health, safety, environmental, and other legitimate public welfare objectives.
-- Changing the present arbitration system of dispute settlement to one involving only governments (state-to-state), among other reasons because outside arbitrators are not qualified to determine the public interest at stake.

China's Mercantilism a Major Threat

Another important change would try to create “a level playing field” globally between private enterprises and those “state-owned” – meaning particularly those owned by the People’s Republic of China.

That change is urgent for several reasons cited in the statement. For example:

-- “China engages in trade based on mercantilist principles, and has a strategic industrial policy meant to create and expand industrial sectors with the intent of becoming dominant within China and globally. In fact, China has targeted ten sectors or ‘pillars,’ including steel, telecommunications, and aerospace. To achieve dominance, the Chinese government subsidizes home-grown industries (commonly SOEs, or state-owned enterprises), manipulates its currency for export advantage, and insulates its domestic enterprises from foreign competitors in a host of ways.”

-- “As investment flows into the United States continue to grow [by over 70 percent since 2004], it can be anticipated that the U.S. market [for foreign investment in the U.S.] will expand substantially. Consequently, BITs can no longer be viewed solely as a package of rights and obligations to protect outward investment by U.S. investors in less developed nations. BIT obligations apply with equal force to investments within the United States by foreign companies and governments, including SOEs.”

The collective statement quoted above is signed by nine persons, including Linda Andros of the United Steelworkers, Matthew Porterfield of Georgetown University’s Institute of Public Law. and Martin Wagner of Earthjustice.

Their statement is part of a long document that also reflects the views of business interests as formulated by other eight persons. That document in turn is part of a much longer report submitted to the Secretary of State on September 30.

I have highlighted, mostly be direct quotation, those parts of the analysis that most clearly state the major issues impacting workers and their organizations. However important, it is a daunting chore, except to those who want to know what’s at stake behind many thousands of sentences in legalese.

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Deviating from free-trade model

“See, I just don’t want to just reduce our dependence on foreign oil and then end up being dependent on foreign technologies. I don’t want to have to import a hybrid car – I want to build a hybrid car here. I don’t want to have to import a hybrid truck…

“I don’t want to have to import a windmill from someplace else – l want to build a windmill right here in Indiana…And that’s just the beginning.”

Thus, on August 5, did President Obama announce $2,400,000,000 in grants to develop “the next generation of fuel-efficient cars and trucks powered by the next generation of battery technologies – all made right here in the U.S. of A.”

About two-thirds of the $2,400,000,000 in grants are to be used to develop and produce advanced vehicle batteries. At present even U.S.-made hybrids, such as the Ford Fusion, depend on imported batteries, primarily from Asia.

While the President was in Indiana, Vice President Biden was in Michigan and Commerce Secretary Locke in Missouri to deliver the good news to two other hard hit areas that will share the stimulus money. “After too many years of economic growth fueled by speculation and short-term thinking,” Locke said, “these types of investment will help recapture the spirit of innovation that has always moved us forward.”

This stimulus money, while much needed and welcomed, will fall far short in regaining the manufacturing jobs lost in recent years. Michigan is estimated to gain up to 30,000 jobs in manufacturing batteries by 2020 if all goes well. But the state has lost some 250,000 industrial jobs since 2005.

Nationally, we Americans continue to consume way more than we produce here. The U.S. trade deficit ballooned by $37,300,000,000 in May. Canada alone added $600,000,000 to that deficit.

Canada is complaining that the “made-in-the-USA” special electric car grants to cities and states violate free trade principles and free trade pacts. But, according to the Financial Post, Canadian provinces have long-standing “buy provincial” policies that apply to their spending for infrastructure and procurement.

As a result, the Obama administration is apparently free to deviate from its free trade model under those circumstances. But it will still have to cope, sooner rather than later, with modernizing a global trade and investment system designed for the past century.

In pursuing that reform, a focus only on the narrow interests of the United States would not just be a world-class blunder; it would be a loser in a World Trade Organization that has 153 members, most from the developing world.

The current system poses problems for people everywhere. Two glaring examples are the protections it gives to the rights of cross-border investors and owners of intellectual property rights without balancing those global rights with corresponding global responsibilities.

Unions here and abroad have long demanded that trade agreements protect labor rights as it does the rights of capital. Had these demands been met (say) three decades ago, it would have made a difference in how globalization evolved. Now those demands, still valid, will have to be part of a package that takes into account the rights of people in the developing world in regard to issues such as foreign investment and intellectual property.


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Save Capitalism? Well, that depends…

...That depends on the kind of capitalism. Some kinds aren't worth saving.

Not the kind that, as a result of the current financial crises, is inflicting more than $2,000,000,000,000 in total losses on the United States and the world.

Not the kind that values the manipulation of money over the production of goods and services.

Not the kind that treats labor as a commodity, a thing like shipload of coal or garbage.

Not the kind that furiously opposes legislation such as the proposed Employee Free Choice Act, which would help give workers and their organizations a right now enjoyed by business people and their organizations.

Not the kind that uses free trade and investment agreements to grant global rights and privileges to business and business organizations without any commensurate responsibilities.

Not the kind that uses its money and muscle to acquire and exploit vast tracts of land in distant lands no matter the harm done to indigenous peoples.

Not the kind that generates unprecedented luxuries for the few while millions and millions live in misery.

“Greed Is Good (to a point)” is the title of an essay by Fareed Zakaria in the current Newsweek. That’s catchy but grossly misleading. It’s like writing an essay on teen-age pregnancy and titling it “Lust Is Good (to a point).”

But Zakaria wisely recognizes that “the fundamental crisis we face is of globalization itself.” He goes on to explain:

“Technology has created worldwide supply chains, companies, and customers. But our politics [i.e., policymaking] remains resolutely national. The tension is at the heart of the many crashes of this era – a mismatch between interconnected economies that are producing global problems but no matching political process that can effect global solutions.”

For the ful text of Zakaria’s essay, see News Week on line at
http://www.newsweek.com/id/201935.

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Protesting Very Foreign Investments

Led by an indigenous organization, tens of thousands of Peruvian Indians have for many months been engaging in non-violent protests against gas and oil exploitation of their ancestral lands. Then on June 5, when government forces in helicopters and on foot clashed with protesters blocking a road in an Amazonian province, at least 11 police officers and 30 Indians were killed and many more were wounded.

The specific aim of the protest is to cancel government legislation enacted in implementing the investment provisions of the Peru-U.S. free trade agreement, signed by President Bush in December 2007.

President Alan Garcia says the legislation will spur development. Indian opponents say it opens up communal lands and water resources to exploitation by foreign investors. Last month the nine Roman Catholic bishops in the Amazon issued a declaration calling the Indians’ complaints legitimate.

They condemned the “cruel and inhuman effort to make decisions about the possessions of riverine and Amazonian communities because they lack the legal means to defend their just demands, even in their own country.”

Thirsting for Distant Lands

The conflict in Peru comes amid an international surge in foreign investment not just by multinational corporations but also by governments and various others entities, including hedge funds and commodity traders.

“A Thirst for Distant Lands: Foreign investment in agricultural land and water,” a report released in May by the International Institute for Sustainable Development, notes that the Gulf States, China, Japan, and South Korea are also acquiring vast plots of land abroad to produce food, animal feed, and energy crops for home consumption.

As in Peru, these foreign acquisitions are generally legal, as legal is traditionally understood, that is, in accord with domestic law, even when adopted under foreign government pressure in negotiations for free trade/investment agreements. But that justification overlooks two modern realities: that rich countries promoting those agreements also advertise human rights, freedom, and democracy, and that those advertisements now instruct far-away people whose rights are violated.

More and more, then, there comes into play a factor that John Ruggie, UN special representative on human rights and business, calls a “social license.” Human rights violations can become so egregious, so intolerable that, no matter the legal license, victimized people get themselves organized to protest and to shout loud and clear Stop! No More!

That has happened in Peru.

One more challenge testing the Obama administration’s policy on foreign trade and investment.

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Balance investor rights with responsibilities

It’s time to replace a foreign trade/investment model that has not worked, as Thea Mai Lee, AFL-CIO policy director, has repeatedly emphasized in Congressional testimony and talks at conferences dealing with the current economic crisis.

In Congressional testimony on May 14, she singled out a critical but often ignored element that belongs in a new trade/investment model: a “balanced” treatment of foreign investment.

“While we understand and support the importance of protecting the rights of investors,” she said, “we believe that existing investment provisions in U.S. investment and trade agreements are imbalanced in two crucial aspects:

“First, they significantly enhance the rights of investors vis-à-vis governments, but they fail to establish commensurate responsibilities for investors, particularly with respect to workers’ rights and the environment.

“Second, they give substantive rights and procedural advantages to foreign investors that are not available to domestic investors. This raises the possibility that investment tribunals can be used to circumvent the democratic process and to achieve regulatory outcomes in a secretive and inaccessible forum. Certainly the experience with the investment chapter of the North American Free Trade Agreement (NAFTA) and current BITs [bilateral investment treaties] reinforces these concerns.”

As now written, she said, the pro-investor language “facilitates and accelerates the offshoring of American jobs – precisely because for the most part there has been no commensurate set of investor obligations.”

Lee is co-chairing a subcommittee of the State Department’s advisory committee on international economic policy to review and critique the draft model BIT.

The United States has 40 BITs in force and 10 Free Trade Agreements with provisions protecting investment, plus a separate multilateral agreement under the World Trade Organization for the same purpose.

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Shelve worker rights because of crisis? No!

“Right now everyone wants to maintain jobs, even if they are sweatshop jobs (China). I think it is exactly why many union people will tell you it is not the time to push on labor standards...The economic logic is against [your] perspective.”

That message was in an email criticizing something I wrote. The email reflects a tempting notion that may be spreading: forget the pro-worker agenda for the sake of the anti-recession agenda. But the temptation is based on a fallacy: that the two agendas are necessarily in conflict.

I started to write a strong rebuttal, but soon realized that there was no need to do so. Why should I, when much wiser heads have already rejected that position? They did so in a letter timed for President Barrack Obama’s official meeting on February 19 with Prime Minister Stephen Harper in Canada.

The letter, dated February 18 and addressed to the top leaders of the two countries, was signed by AFL-CIO President John Sweeney and President Kenneth Georgetti of the Canadian Congress of Labor (CLC), who together represent 12,200,000 union members.

Their five-page letter detailed the ways in which Canada and the United States need to work together on the economic crisis and on advancing worker rights. They discussed those two major areas under two headings: “1. Coordinated Response to Current Economic Crisis” and “2. NAFTA Renegotiation.”

The renegotiation of the North American Free Trade Agreement (NAFTA) sparked by far the most interest. Media accounts suggested that Obama’s concerns center on moving the “side” (separate) agreements on labor and the environment into the main body of NAFTA. Whatever the administration’s closely held position may be, the AFL-CIO and CLC position is not limited to what the existing labor and environment agreements cover.

“Substantive amendments” are required in otherimportant areas, Sweeney and Georgetti state. For example, NAFTA’s investment section is flawed by, among other things providing investments “unwarranted and excessive protections.” Other “central concerns with NAFTA” cover its provisions on energy, trade in services, and agriculture.

All in all, “a very ambitious list,” as the two labor leaders conceded. But they certainly don’t believe that the economic crisis requires sacrificing the rights of workers, whether here at home or abroad.

UPDATE: Since writing the above, I learned that the office of the U.S. Trade Representative (USTR)has just released a long report on the President's trade policy, which I'll comment on as soon as I have a chance to read it and think about it. Meantime, check it out yourself at www.ustr.gov, and do by all means send me YOUR comments.


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U.S. Investment in Vietnam and Human Rights

The governments of the United States and the Socialist Republic of Vietnam will soon launch negotiations for a treaty to protect American investment and investors in Vietnam. The proposed treaty, called a BIT for Bilateral Investment Treaty, offers a natural opportunity to include human rights provisions, but so far there is no sign that the present U.S. administration plans to do so.

The 40 BITs that the United States already has with other countries do not have any human rights provisions. A new BIT with Vietnam could change that pattern, however, if Congressional advocates of international human rights get mobilized.

According to a report adopted unanimously by the UN Human Rights Council in June, the present BIT pattern creates an “imbalance” that weakens the host government’s obligations on human rights. The report, authored by Professor John Ruggie of Harvard, states:

“Investor protections [under BITs] have expanded with little regard to States’ duties to protect [human rights], skewing the balance between the two. Consequently, host States can find it difficult to strengthen domestic social and environmental standards, including those related to human rights, without fear of foreign investor challenge, which can take place under binding international arbitration.”

A joint U.S.-SRV statement on June 25 announced the decision to initiate the BIT negotiations. Separately, it also “noted the benefit of an open and candid dialogue on issues relating to human rights.” But it said nothing about the impact that U.S. investment in Vietnam – topping $12,000,000,000 in 2007 – has on the rights of Vietnamese workers and others.

The U.S. will use its standard “model agreement” as the starting point for negotiations with Vietnam. It defines “investment” so broadly that it includes patents, copyrights, trademarks, and other forms of intellectual property rights, and lays down strong enforcement mechanisms, including access to international arbitration for the investor.

Another “model BIT” has been developed by a Canada-based NGO, the International Institute for Sustainable Development (IISD). After extensive research, IIISD found that existing BITs are “one-sided instruments” that guarantee extensive protection of of the rights of foreign investors but without any corresponding investor responsibilies. The IISD model corrects that imbalance. (See “Linking Global Rights with Responsibilities": scroll down to the next-to-last item.)

Congressional concerns about this issue is reflected in the Trade Reform, Accountability, Development, and Employment Act, introduced on June 4. Among its provisions is that BIT protections of investor rights could no longer override a country’s efforts to protect the rights of its own workers.

It is probably too late to enact that bill into law, but it’s not too late to hold hearings on the proposed U.S. Bilateral Investment Treaty with Vietnam. Up till now, Congress has rubber-stamped BIT after BIT without drawing any public attention. It’s time to let the sunshine in.

Both Senators Obama and Clinton have pledged to review the labor provisions of trade agreements under a Democratic administration. They don't have to wait that long. They can insist that the Senate review the proposed BIT with Vietnam for its impact on the human rights of Vietnam's workers.

So one big question is: Will Congress rubberstamp the U.S.-Vietnam BIT without studying how it impacts the rights of Vietnam's working men and women? Another is: Will it rubberstamp that BIT without studying how facilitating more investments to Vietnam will facilitate the transfer of American jobs to the Socialist Republic of Vietnam?

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New World vs. Old World Trade Policies

-- The flow of foreign direct investment (FDI) into developing countries (including China) grew more than 10-fold in the past 15 or 16 years. It reached $379,070,000,000 in 2006.

-- The services sector – banks, communication, education, hotels, restaurants, and public utilities, for example – now outpaces manufacturing in attracting FDI. In 2005 the services sector accounted for about three-fifths (61 percent) of global FDI stock (up from 49 percent in 1990).

-- Although the number of multinational corporations with headquarters in developing countries is increasing, they still are dwarfed by those based in industrialized economies. The total foreign assets of the top multinationals based in developing economies, for example, in 2005 amounted to the total foreign assets of a single U.S. multinational, General Electric, the largest multinational in the world.

-- Foreign affiliates of the 78,000 multinational corporations based in the United States, Europe, and Japan have tripled their workforce. In 2006 the number of people on their payrolls stood at 73,000,000 (not counting people hired by contractors and subcontractors), up from 25,000,000 in 1990.

Those are a few of the fascinating statistics in Development and Globalization: Facts and Figures, just issued by the United Nations Conference on Trade and Development (UNCTAD). They illustrate the transformations the world has undergone since 1990.

What implications do these and other transformations have for world trade and investment policies? The question is seldom addressed. But there are some exceptions.


Awareness is growing that at least the investment chapter of the typical trade agreement needs revision. UNCTAD’s 2007 Trade and Development Report, for example, criticized most bilateral “North-South” free trade agreements for restricting the options that poor countries have for adopting FDI policies suitable for their own circumstances.

On October 1-2, over 30 negotiators representing more than 25 countries assembled in Singapore for the 1st Annual Forum of Developing Country Negotiators. There they discussed (as a forum report put it) “their common challenge: finding the appropriate balance between the need to attract more foreign direct investment and the need to serve a wide range of public policy objectives, including economic development.”

That same challenge facing developing countries is analyzed in a report expected to be approved by the June meeting of the Human Rights Council. The report; written by Professor John Ruggie of Harvard, devotes seven paragraphs to the “adverse effects” of the current one-sided policy of protecting foreign investors and investments. These protections, Ruggie writes, have been expanded “with little regard to States’ duties to protect to protect [human rights], skewing the balance between the two [the State and the foreign investor].”

“The State Duty to Protect” human rights is a major theme of the Ruggie report, titled Protect, Respect and Remedy: a Framework for Business and Human Rights. Pope Benedict XVI stressed the same theme, mostly using the same terms, in his address to the UN General Assembly on April 18.

When will U.S. policymakers listen to these voices? Until they do, expect the backlash against globalization to continue, or even to intensify. See previous postings this month.


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Multinationals, Human Rights, and UN – III

(Reporting on the Ruggie Report – III)

Can anything concrete come out of the report that Professor John Ruggie prepared for the June session of the UN Human Rights Council? After all, the report offers just a “framework” for business and human rights, not a program of action.

Yet the report is far from a compilation of abstractions. I find that it contains a bundle of specific policy ideas that, if taken seriously by the Council and even only a few major UN members, will improve the protection of individuals, organizations, and weak governments against what Ruggie calls “corporate-related human rights harm.”

Take Ruggie’s incisive criticism of the present foreign investment system. He describes how trade and investment laws have expanded the legal rights of foreign investors without matching responsibilities, and thereby undermined the State’s duty to protect human rights, “skewing the balance between the two.”

This imbalance creates human rights predicaments for both “host States” and “home States.” A major example cited by Ruggie: “host States can find it difficult to strengthen domestic social and environmental standards, including those related to human rights, without fear of foreign investor challenges, which can take place under binding international arbitration” – that is, under a procedure that often favors the investor, a flaw not mentioned by Ruggie.

His report provides enough information on this imbalance to strengthen already existing campaigns to correct it. And the various issues that Ruggie highlights should be instructive to Congress next year when it formulates U.S. trade and investment policy to replace “trade promotion”legislation and other policies conducive to moving jobs offshore. Ruggie’s insights will also be useful in the almost certain renegotiation next year of the 15-year-old North American Free Trade Agreement (NAFTA), which set the pattern for the imbalances written into subsequent U.S. bilateral trade agreements.

Another concrete matter covered in Ruggie’s “framework” concerns the Paris-based Organization for Economic Cooperation and Development (OECD), of which the United States and 39 other industrialized states are members. The OECD Guidelines for Multinational Enterprises are “currently the most widely applicable set of government-endorsed standards related to corporate responsibility and human rights,” as Ruggie points out.

In analyzing the Guidelines, he explains why and how they should be revised to make their human rights provisions more specific, and how their administration needs improvement. The case he makes is sure to assist trade union leaders and others who have long pressed for similar reforms.

So the report does indeed have much potential value on the practical level. Moving from the potential to the actual, of course, will depend on a variety of “actors,” or “stakeholders,” including the institution that commissioned the report, the Human Rights Council.

Ruggie concludes his report with this sentence: “The Human Rights Council can make a singular contribution to closing the governance gaps in business and human rights by supporting the framework, inviting its further elaboration, and fostering its uptake by all relevant social actors.”

Note the term that appears in that sentence and elsewhere in the report – governance gaps. The gaps exist “between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences….How to narrow and ultimately bridge the gaps in relation to human rights is our fundamental challenge.”

He restates, and reemphasizes, that challenge in his concluding paragraphs: “As has happened throughout history, rapid market expansion has also created governance gaps in numerous policy domains: gaps between the scope of economic activities and actors, and the capacity of political institutions to manage their adverse consequences. The area of business and human rights is one such domain.”

The greatest value of Ruggie’s 28-page report, in my view, is that he contributes much toward an evolving paradigm of business and human rights under globalization. Policymakers need such a conceptual framework to make sustainable progress toward integrating business and human rights in principle and in practice.


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Multinationals, Human Rights, and UN - II

(Reporting on the Ruggie Report – II)

“Unfeasible, unnecessary, and counter-productive.” That’s how the U.S. Council for International Business denounced a 2003 document titled the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights,” or Norms. The opposition of the U.S. government, too, was vigorous, so much so that Amnesty International publicly called upon U.S. Secretary of State Condoleezza Rice to put an end to U.S.’s “undermining” the Norms.

The document that provoked so much controversy, pro and con, was the handiwork of the UN Subcommission for the Promotion and Protection of Human Rights, made up of 26 independent human rights experts. A U.S. academic, David Weissbrodt, professor of law at the University of Minnesota, was the expert most responsible for researching and drafting the Norms.

Polarization, human rights organizations vs business, doomed the Norms, but not the basic idea behind it. Three years ago (in April 2005) UN Secretary-General Kofi Annan appointed Professor John Ruggie of Harvard to carry on what is essentially the same project. His mandate includes “identifying and clarifying standards of corporate responsibility with regard to human rights.”

Where to find those standards? Weissbrodt culled them from three dozen UN treaties and other international instruments, including ILO conventions and recommendations. Ruggie started by looking elsewhere. He commissioned a study of 320 cases of alleged corporate-related human rights abuse reported on the website of the Business and Human Rights Centre during a 33-month period that ended in December 2007. He then had each case coded for the rights the alleged abuses impacted from among those listed in seven key UN human rights documents, including the four core worker rights conventions of the ILO.

Ruggie’s empirical study identified 12 labor rights and 17 non-labor rights. That means “there are few if any internationally recognized rights [that] business cannot impact – or be perceived to impact – in some manner.” Ruggie’s conclusion: there are no limits to the rights that companies “should take into account.” On this basis, he judges that the Norms would be inadequate, even for protecting a corporation’s own interests, since they identify only “a limited set of rights for which [a corporation] may bear responsibility.”

As a result, in the report that will be considered at the June session of the Human Rights Council, Ruggie lays a heavy human rights burden on corporations. Part of it is the moral and legal responsibility of exercising "due diligence."

“To discharge the responsibility to respect [human rights] requires due diligence,” Ruggie emphasizes. One of his specific recommendations is that companies should look for guidance in the Universal Declaration of Human Rights and the core worker rights conventions of the ILO. “The principles they embody comprise the benchmarks against which other social actors judge the human rights impacts of companies.”

Drawing on his recent research and consultations, Ruggie sets down four elements of a company’s basic due diligence process:

Written policies: To give the aspirational language meaning, more detailed guidance in specific functional areas is necessary.

Impact assessments: Many problems arise because companies fail to consider the potential human rights implications before new activities are launched. After getting launched, activities should reviewed on an on-going basis.

Integration: Isolating human rights considerations in a company is a mistake that can lead to inconsistent or contradictory actions by product developers, lobbyists, sales teams, or procurement officials. Leadership from the top is essential to embed respect for human rights throughout a company.

Tracking performance: Monitoring and auditing processes are needed to get updates of human rights performance. Confidential channels, such as hotlines, can provide useful feedback.

How will organized business react to Ruggie’s ambitious new framework? No explosion so far. Nobody should be surprised by this report, though. In his speeches, interviews, and previous reports, Ruggie has been clear about where he was heading. His style throughout the past three years has been a model of openness as he went about

-- convening 14 multi-stakeholder consultations on five continents.
-- initiating more than two dozen research projects, some with the assistance of global law firms and other legal experts, nongovernmental organizations (NGOs), international institutions, and committed individuals.
-- generating more than 1,000 pages of documentation as the foundation of his framework.
-- receiving about 20 formal “submissions” (comments) from governments and other stakeholders..
-- presenting two extensive reports on his mandate to the Commission on Human Rights and its successor, the Human Rights Council [in 2006 and 2007], prior to this one]

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Multinationals, Human Rights, and UN - I

As the United Nations prepares to celebrate the 60th anniversary of the Universal Declaration of Human Rights this December, a report commissioned by the UN is challenging governments and business to focus on corporate-related abuses of human rights.

Titled “Protect, Respect, and Remedy: a Framework for Business and Human Rights,” the just-released report is on the agenda of the UN Human Rights Council’s June session in Geneva. Its author, Professor John Ruggie of Harvard, is the Special Representative of the UN Secretary General on the issue of human rights and transnational corporations.

His report describes and endorses “ways to reduce or compensate for the governance gaps created by globalization, because they permit corporate-related harm to occur even where none may be intended.” Governance gaps? It is a key concept of the report. Ruggie defines it as the vacuum “between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences.” He goes on to explain what it means in one crucial area.

“Take the case of transnational corporations,” he writes, and goes on to illustrate how the gaps have evolved under recent globalization:

[Corporate] legal rights have been expanded significantly over the past generation. This has encouraged investment and trade flows, but it has also created instances of imbalances between firms and States that may be detrimental to human rights. The more than 2,500 bilateral investment treaties currently in effect are a case in point.

While providing legitimate protection to foreign investors, these treaties also permit those investors to take host States to binding international arbitration, including for alleged damages resulting from implementation of legislation to improve domestic social and environmental standards – even when the legislation applies uniformly to all businesses, foreign and domestic. A European mining company in South Africa recently challenged that country’s black economic empowerment laws on these grounds.

At the same time, the legal framework regulating transnational corporations operates much as it did long before the recent wave of globalization. A parent company and its subsidiaries continue to be construed as distinct legal entities. Therefore, a parent company is generally not liable for wrongs committed by a subsidiary, even where it is the sole shareholder, unless the subsidiary is under such operational control by the parent that it can be seen as its mere agent.

Ruggie gives examples of how “the transformative changes in the global economic landscape” are not reflected in current laws, regulations, and bureaucratic procedures. Also vital in contributing to the governance gaps is the reluctance of the host and home countries to risk taking on the transnationals.

“This dynamic is hardly limited to transnational corporations,” Ruggie adds. “To attract investments and promote exports, governments may exempt national firms from certain legal and regulatory requirements or fail to adopt such standards in the first place.”

Under international law, Ruggie points out, “States have a duty to protect against human rights abuses by non-State actors, including business, affecting persons within their territory or jurisdiction,” as also discussed in his earlier (2007) report on his mandate. In this report he finds that “there is increasing encouragement at the national level for home States to take regulatory action to prevent abuse by their companies.”

Here, in opening a long section on “the state duty to protect,” Ruggie makes an implied criticism of human rights experts. “Within governments and beyond,” those experts have a good understanding of the “general duty” of States to protect human rights. But “less internalized is the diverse array of policy domains through which States may fulfill this duty with respect to business activities…at home and abroad.”

In other words, governments have available human rights tools that often remain unused or under-used. Ruggie devotes five pages to them. He urges viewing them as “an urgent policy priority …necessitated by the escalating exposure of people and communities to corporate-related abuses, and the growing exposure of companies to social risks they clearly cannot manage adequately on their own.” Three examples:

-- Revising international investment agreements to ensure that the rights protecting investments abroad are balanced with responsibilities to respect the host country’s domestic environmental and social standards.
-- Adopting policies more proactive in preventing harmful corporate involvement in “conflict zones,” including the use of Security Council-approved sanctions as appropriate to each situation.
-- Redefining fiduciary duties, as the UK recently has done, to require corporate directors to “have regard” to matters such as “the impact of the company’s operation on the community and the environment.”

In concluding his special section on the State duty to protect human rights, Ruggie reaffirms: “The human rights regime rests upon the bedrock role of States. That is why the duty to protect is a core principle of the business and human rights framework. But meeting business and human rights challenges also requires the active participation of business directly.”

He then turns to his second principle, the corporate responsibility to respect human rights. So will I, in my next posting.

4/21/08
Reporting on the Ruggie Report - I

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Imbedded in WTO: Human Rights for Some

Does the WTO promote human rights? No, it does not. At least that would be the unqualified answer of the WTO and trade experts generally. But that answer should be qualified, and one trade expert, Susan Ariel Aaronson, nails down a partial qualification in a new study.

“Human rights are seeping into WTO deliberations and activities,” says Aaronson, associate professor in the business and international affairs schools at George Washington University and co-author of "Trade Imbalance: the Struggle to Weigh Human Rights in Trade Policymaking" (Cambridge 2008).

Aaronson makes clear that the WTO has no mandate on human rights and that the various trade and investment agreements under its umbrella make no explicit mention of human rights as such. Yet “a wide range of human rights concerns” arise in day-to-day WTO operations, and she documents examples in the following categories:

-- “Members use trade waivers and exceptions to promote human rights at home or abroad.”
-- “They occasionally bring up human rights during accessions and trade policy reviews.”
-- “They have amended the TRIPS agreement to make it clear that nations can use the public health exception to TRIPS in times of public health emergencies.”
-- “Human rights concerns have even entered into trade negotiations (e.g., food security).”

John Ruggie, the UN secretary general’s special representative on business and human rights, who is preparing a report on business and human rights for the UN Human Rights Council, commissioned Aaronson’s study. Her overall conclusion is that although nation-states are limited by WTO agreements in their ability to advance human rights, they still have a good deal of leeway to do so at home and abroad.

Outside the paramaters of this study is another fascinating dimension to the global network of trade and investment agreements. Here, too, there is no explicit mention of human rights, but that doesn’t mean they are non-existent.

Actually, human rights linkages are evident in a surprising number of WTO trade agreements. That’s especially so for two major WTO concerns: the protection of intellectual property rights and the protection of the rights of foreign investors. Check the Universal Declaration of Human Rights. Its article 27 proclaims the right to the protection of various types of intellectual property; and article 17, “the right to own property alone as well as in association with others” and the right not to be arbitrarily deprived of property.

These particular human rights are implemented at the WTO (or multilateral) level by two key global agreements: more than amply by the “Trade-Related Aspects of Intellectual Property Rights” (TRIPS) agreement and, less satisfactorily (from the typical investor’s perspective) by the “Trade-Related Investment Measures (TRIMs)” agreement.”

Country-to-country (bilateral) agreements carry this implementation even further, with TRIPs and TRIMs protections strengthened beyond WTO requirements. Take, for example, the administration’s trade agreement with Colombia, which Congress has just shelved. The Colombia FTA devotes

-- 33 pages to protecting intellectual property rights, 11 of them on enforcement alone
-- 35 pages to protecting foreign investment, very broadly defined, 13 of them on enforcement through dispute settlement procedures in which only the investor can bring a claim.

Again, there is no mention that the rights involved are human rights. That omission holds true for a bundle of other WTO-protected rights in this FTA, as well as across-the-board in all multilateral and bilateral trade agreements.

This is not a semantic quibble. It is an issue that leads to a fundamental question: is the present global trade regime serving the common good or not?

In response to demands that the WTO start protecting the human rights of workers, the usual answer is that the WTO does not do human rights. The truth is otherwise. The WTO does indeed do some human rights, and that limited mission is imbedded in the policies and rules of the whole trade and investment regime.

Open acknowledgment of this fact – by putting an end to mislabeling – would turn the spotlight on who now benefits from the human rights provisions that the WTO promulgates globally, but under other names. Such transparency would reveal the way that selected human rights are woven into the very fabric of the WTO. It would expose the inequity, the lack of inclusiveness, of a WTO system that ignores the human rights of stakeholders indispensable to the global economy – the world’s working men and women.

My congratulations to Professor Aaronson for her provocative study. It should be complemented by an analysis on how extensively the WTO and its agreements support the human rights of global business without acknowledging the human rights principles of the enterprise.


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HOORAY! A Little Step Forward

At long last, cross-border investing is in the spotlight for something other than money-making. It is starting to get attention for its effect on people other than the investors themselves.

Here’s what’s happening. Over the years international agreements – numbering at least 2,500 - to protect the rights of international investors have proliferated to the point that they cover most of the globe. Now, there is growing challenge to the ubiquity of those agreements and increasing pressure to have the protected investment rights balanced with corresponding responsibilities. Or (from another perspective) to balance investor rights with corresponding rights of host governments and their citizens.

Last November, the 19 governments that are member states of the Common Market for Eastern and Southern Africa, Comesa for short, took a pioneering step by adopting an area agreement that will, when put in effect, cover private investment flows into and within Comesa. Its terms will include minimum requirements on labor standards and respect for human rights.

Another sign of the way the breeze is blowing: a two-day meeting in Singapore last October brought together more than 30 government officials who negotiate international investment agreements for over 25 countries. Briefings by experts served to strengthen the negotiating capacity of developing countries in light of three circumstances:

-- The increasing complexity of the model agreements proposed by the United States, Canada, and other major countries.
-- The stark disadvantage faced by developing countries when dealing with wealthier nations, which throw greater resources into the negotiating process.
-- The uncertainties of investor-state arbitration in settling disputes.

The meeting enabled the developing country negotiators to network and to share ideas on how to achieve an appropriate balance between the need to attract more foreign direct investment and the need to serve the country’s own public policy directives.

Developing countries don’t have the help that rich countries get from their Paris-based Organization for Economic Cooperation and Development (OECD). But the Singapore meeting was only the beginning, as indicated by its formal name: the First Annual Forum of Developing Country Negotiators.

The forum’s co-sponsor, the International Institute for Sustainable Development, has just made another contribution toward highlighting the significance of “International Investment Agreements, Business and Human Rights: Key Issues and Opportunities.” That’s the title of a 43-page report that the Institute’s Howard Mann prepared at the request of John Ruggie, the UN Special Representative on Business and Human Rights.

The report addresses this basic question: Does the present international investment agreement (IIA) regime play a positive role in embedding human rights principles into the values and institutional practices of global capital markets?

Answer: No, it does not, and it often plays a negative role by preventing a government from requiring a foreign investor to respect the country’s own labor and environment regulations. ”IIAs limit the right of states to regulate, and these limits may extend to the state duty to protect and promote human rights,” the report states.

Investment agreements go into great detail on the rights of foreign investors and how those rights can be enforced. But “there is no enforcement mechanism against [foreign] corporations, as there are no obligations falling upon them.”

The Institute’s report received no attention from the media. Hopefully, its message will live on, however, since Ruggie will draw on it for a report to the Human Rights Council later this year.

Why do I keep harping on this subject? Because:

1. International investments are a major force in shaping globalization.
2. Investment policy, as written and enforced, now takes priority over the labor policies of governments in the developing world.
3. This absence of pro-worker policies facilitates the job outflow from the United States and other industrial countries.
4. Reform of investment agreements is absolutely necessary, and future trade negotiations must insure that investment agreements balance the rights of foreign investment with corresponding responsibilities, including the responsibility to respect the human rights of workers.
5. Current demands to reform trade and investment policy fall short in that they neglect to cover the practices discussed in the IISD report.

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Reform Global Investment Rules!

That slogan, or a zippy version of it, may well pop up in the speeches of Democratic candidates for President. Here’s why.

A big reason for the public’s suspicion of globalization is that its governing rules and procedures are mysterious to almost everyone, except for a select group of insiders. Few of those rules and procedures are more mysterious than the ones governing cross-border investments, even as international agreements protecting them have multiplied at a pace almost as rapid as foreign investments themselves.

Now some countries and international NGOs are demanding a simple reform to help demystify the process of protecting foreign investment. They want transparency in how international tribunals make decisions in disputes between foreign investors and the countries in which they invest. The issue is highly sensitive because current intergovernmental agreements on investments are generally one-sided -– they contain a series of rights for inward capital, but they lack any counter-balancing investor responsibilities.

This imbalance is a serious flaw in the 15-year-old North American Free Trade Agreement (NAFTA), and is at the root of some U.S. labor and NGO attacks on its Chapter 11, which grants U.S. and other foreign investors rights in Mexico without commensurate responsibilities. This lop-sided protection, which the U.S. has duplicated in other free trade agreements, has not surfaced as an issue in the U.S. Presidential contest, but may if Hillary Clinton and Barrack Obama are asked for details explaining why they say NAFTA needs to be reformed.

Meantime, some developing countries, joined by two international NGOs and some developing countries that have been bitten by expensive lawsuits under Chapter 11, are seeking change in one contentious area of the larger problem. They are pressing for a partial reform in rules to make transparency a requirement in all arbitrations filed by private foreign investors against states. In early February, however, this initiative was rebuffed by a UN Working Group charged with revising a key set of international arbitration rules.

If you have gotten this far, bravo. There’s more.

This is not a riveting issue. No wonder, then, that you haven’t seen or heard anything in the media about it, not even about the February 15 joint press statement released by the two international NGOs, the Center for International Environmental Law and the International Institute for Sustainable Development. But bear with me, please.

John Ruggie, UN Special Representative to the Secretary General, recently summarized what is at stake: “Adequate transparency where human rights and other state responsibilities are concerned is essential if publics are to be aware of proceedings that may affect public interest. Indeed, transparency lies at the very foundation of what the United Nations and other authoritative entities have been promulgating on the precepts of good governance.”

The joint press release, besides quoting Ruggie’s words, has a lengthy explanation of the issues involved and how a transparency reform, though delayed, might still be adopted:

Under regulations laid down in free trade and investment pacts, foreign investors have the right to bypass local courts and bring disputes with the host state to international arbitration. Even when these disputes raise crucial public interest issues -- impacts of failed water privatizations, financial crises in developing countries, and environmental and health regulations, for example -- arbitrators are able to hide their work behind a veil of secrecy. Thus, interested citizens, NGOs, and other governments are kept ignorant about decisions affecting them.

A Working Group of the UN Commission on International Trade Law (UNCITRAL), which is responsible for a key set of rules governing these arbitrations and is currently revising them, has so far blocked inclusion of transparency provisions in the revision. But the question has now moved from the Working Group to the UNCITRAL Commission itself, which meets in June at the UN headquarters in New York

By airing the issues publicly now, the two NGOs, IISD, headquartered in Canada, and CIEL, headquartered in Washington, are hoping that their arguments will persuade the UN Commission on International Trade Law to decide in favor of sunshine.
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Is there any likelihood of awakening public interest in this issue? Read on.

The present UN arbitration rules, dating since 1976, do not distinguish between private commercial arbitrations and those between a state and foreign investors and thereby apply the same secrecy rules to both. But the public interest element in investor-state disputes requires transparency, as argued in a 17-page study by IISD and CIEL.

Also enlightening, and on a wide range of foreign investment issues, is an IISD publication on “Why Elected Officials Need To Pay Attention to International Investment Agreements.” Trade union leaders and their staffs also need to pay attention.

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