International trade and investment agreements can have positive outcomes, but also have negative consequences that affect global health and influence fundamental health determinants: poverty, inequality and the environment. This article proposes principles and strategies for designing future international law to attain health and common good objectives.
International trade and investment agreements (TIAs) affect global health, equity and justice – the common good. TIAs can have positive benefits but, from a range of health and social good perspectives, also have negative outcomes. This article focuses on ideas for change to such agreements and their institutional contexts, with the aim of achieving public health objectives. Because of this future focus, material in the following sections provides only a brief summary of why change is needed, and does not duplicate the growing literature on the problems for public health arising from TIAs.
Economic growth should be recognised as a means to common good objectives, rather than an end in itself. Our favoured approach is both radical and comprehensive: we describe what this approach would include and outline the strategies for its implementation, the processes and capacity building necessary for its achievement, and related governance and corporate issues.
The comprehensive approach includes significant changes to current models for trade and investment agreements, in particular
health, social and environmental objectives would be recognised as legitimate in their own right and implemented accordingly;
changes to dispute-resolution processes, both state-to-state and investor-state;
greater deference to international legal frameworks for health, environmental protection, and human rights;
greater coherence across the international law framework;
limitations on investor privileges, and
enforceable corporate responsibilities for contributing to health, environmental, human rights and other common good objectives. We also identify some limited changes that could be considered as an alternative to the proposed comprehensive approach.
Future research is needed to develop a range of model treaties, and on the means by which such treaties and reforms might be achieved. Such research would focus also on complementary institutional reforms relevant to the United Nations and other international agencies. Advocacy by a range of communities is needed for effective change. Reform will require informed debate, determined engagement with decision-makers and stakeholders, and some agreement across health, social and environmental sectors on alternatives.
Principles for TIA development processes
The essential bases for just and sustainable treaty processes include:
support for the effective participation of countries and the participation of citizens within these countries in developing policies for TIAs, with special emphasis given to poorer countries and population groups;.
Support for multilateralism; that is, an approach that involves a commitment to rule-based principles, and norms of openness and universality, preferably within global governance structures, processes and institutions, rather than regionally based treaties;
Transparent, fair, open and consultative processes for TIA development and implementation;
Recognition, throughout the treaty development process, of the need for provision for, and effective use of, review clauses in TIAs.
There are two main international methods of TIA dispute resolution. One is that provided in WTO treaties, where only nation states may take action in relation to other states. The other is the method in most non-WTO treaties. This, as well as state-to-state action, allows investors to take action against states through investor-state dispute settlement (ISDS).
Modifications to non-WTO treaties would include either significant change to ISDS or its removal. Concerns about ISDS include process issues, and ‘chilling’ effects due to both process and outcomes . ‘Chilling’ is government inaction because of potential or real threats of legal action. Modifications to ISDS could involve provision for appeals; a more ‘judicial’ approach to appointing impartial dispute decision makers; greater transparency of dispute decision-making; the ability for the public, NGOs, and relevant sectors to have input to hearings; and published decisions with precedent value. Some countries have demonstrated that ISDS is not a necessary element of TIAs, The removal of ISDS, rather than its modification, would necessitate reliance on domestic court systems in the country hosting the investment, or some form of state-to-state dispute settlement,
Some of these ideas would be susceptible to a ‘mix and match’ or incremental approach. Nevertheless, we strongly favour a re-envisioning of basic frameworks, as implemented by the comprehensive approach outlined.
We conclude that ‘model’ treaties are needed to demonstrate how new TIA law could look in practice, as well as ideas on how new law might be realised. Research is needed to develop details of the range of models and the institutional underpinnings to ensure their efficacy.
International law that is health promoting, sustainable, and supportive of the SDGs, will require advocacy for real change.
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