Multilateral Agreement on Investment

MAI would be in conflict with peremptory norms of general international law and thus be null and void

By Joan Russow,
National Leader of the Green Party of Canada
14 March 1998

Under Article 53 of the Convention on the Law of Treaties

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. for the purposes of the present convention, a preemptory norm of general international law is a norm accepted and are recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

The MAI would undermine several principles of international customary law which could be considered general norms of international law some of which are the following.

1. The Precautionary principle

The precautionary principle has been enunciated in international documents since at least the 1972 United Nations Conference on Humans and the Environment (Stockholm Convention), where it appeared in a rudimentary form; it was then reinforced in the 1982 UN Resolution 37/7, the World Charter of Nature, and then re-enunciated throughout the UNCED documents.

Since 1972,in Stockholm the essence of the precautionary principle was agreed to by the member states of the United Nations

"A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment...Declaration of the United Nations Conference on the Human Environment (Declaration of the United Nations Conference on the Human Environment" (1972)

This principle was further reinforced in 1982, in the World Charter of Nature:

"Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed" (11 b) World Charter of Nature ( 1982)

Activities which are likely to cause irreversible damage to nature shall be avoided (11. a) World Charter of Nature ( 1982)

In 1992, in the UNCED documents there is the full enunciation of the precautionary principle. This principle is present in all the documents in differing forms:

In the Rio Declaration it is expressed in the following way

Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." ( Rio Declaration, 1992).

: in the Framework for a Climate Change Convention it is phrased in a different way:

"The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures (Climate Change Convention, 1992) and in the Convention on Biological Diversity "where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat" (Convention on Biological Diversity, UNCED, 1992

2. INTERGENERATIONAL EQUITY PRINCIPLE

The obligation to future generation has been enunciated as a principle for over twenty years, and thus has become a principle of international customary law and thus a norm of international law

In the United Nations Convention for the Protection of Cultural and Natural Heritage:

"Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in articles 1 and 2 and situated on its territory, belongs primarily to that State. (United Nations Convention for the Protection of Cultural and Natural Heritage", 1972)

In the Stockholm Convention of 1972, the requirement to preserve our environmental heritage and the requirement to save a representative sample of natural ecosystems for future generations were being recognized:

"The natural resources of the earth including the air, water, land, flora and fauna and especially representative samples of natural ecosystems must be safeguarded for the benefit of present and future generations" (Principle 2)

[Humans] have a special responsibility to safeguard and wisely manage the heritage of wild life and its habitat which are now gravely imperiled by a combination of adverse factors (Principle 4),

In UN Resolution 37/7, 1982

Reaffirming that [humans] must acquire the knowledge to maintain and enhance his ability to use natural resources in a manner which ensures the preservation of the species and ecosystems for the benefit of present and future generations,(UN Resolution 37/7, 1982)

In the Convention of Biological Diversity

"to conserve and sustainably use biological diversity for the benefit of present and future generations (Biodiversity Convention, UNCED, 1992) and in the Framework Convention on Climate Change:

" to protect the climate system for present and future generations"

The principle of considering the need to preserve ecological heritage for future generations, because of its continued inclusion in international documents, has become a principle of international customary law.

Continued depletion of resources upon which future generations depend are being depleted

Around the world many of the basic resources on which future generations will depend for their survival and well-being are being depleted and environmental degradation is intensifying, driven by unsustainable patterns of production and consumption, unprecedented growth in population, widespread and persistent poverty, and social and economic inequality (Preamble, 1.2. International Conference on Population and Development, 1994)

3. THE NON-TRANSFERENCE OF HARMFUL SUBSTANCES OR ACTIVITIES PRINCIPLE

This principle has been previously enunciated in different forms through General assembly resolutions and was globally adopted at the UNCED:

States should effectively cooperate to discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradation or are found to be harmful to human health (Rio Declaration, UNCED)

(This principle should never be qualified by the excuse that the recipient state is willing to accept the harmful substances or activities. Also the excuse of "Extraterritoriality" shall not be used as an devise to justify the transferring these harmful substances and activities (i.e. what right do we have to impose our standards on other communities, regions or states-self-serving extraterritorialism-avoidance).

4. COMPLIANCE PRINCIPLE

The obligation to enact the necessary legislation to ensure compliance with international law has been established in international Conventions, Protocols, Declarations, Covenants, and Resolutions, and has thus become a principle of international customary law.

This international customary law principle has been expressed in numerous international documents for over 20 years. An example of the enunciation of the principle can be found in the UN Resolution 37/7. and reads as follows:

The principles set forth in the present Charter shall be reflected in the law and practice of each State, as well as at the international level (UN Resolution 37/7)

In Art. 60 of the Convention of Law of Treaties, states are bound to not create situations in which it would be impossible to fulfill treaty obligations"

Also, under the Convention of the Law of Treaties, states are bound, unless specifically mentioned, not to invoke internal law to justify non performance of a treaty obligation (Art. 27).

This principle of compliance was extended in recent UN Conferences to cover the commitment to ensure corporate compliance with international law. In 1995, in the Platform of Action, UN Convention on Women: Equality, Development and Peace, States undertook to ensure that "all corporations including transnational corporations, comply with national laws and codes, social security regulations, applicable international agreements, instruments and conventions, including those related to the environment, and other relevant laws" (Section 167). This undertaking was reaffirmed and extended in the Habitat II Agenda to include the "private sector".

MEMBER STATES OF THE UNITED NATIONS CURRENTLY NEGOTIATING THE MAI THROUGH THE OECD HAVE FAILED TO SIGN AND RATIFY ALL RELEVANT INTERNATIONAL PUBLIC TRUST AGREEMENTS RELATED TO GUARANTEEING HUMAN RIGHTS, PROTECTING AND PRESERVING THE ENVIRONMENT, PREVENTING WAR AND CONFLICT, ENABLING SOCIAL JUSTICE INCLUDING LABOUR RIGHTS, AND PROVIDING FOR SOCIALLY EQUITABLE AND ENVIRONMENTALLY SOUND EMPLOYMENT. MANY OF THE MEMBER STATES OF THE UNITED NATIONS NEGOTIATING THE MAI HAVE FAILED ENACT THE NECESSARY LEGISLATION TO COMPLY WITH THEIR PUBLIC TRUST INTERNATIONAL OBLIGATIONS.

The MAI must be deemed to be in conflict with a peremptory norms of general international law, and as such should be if completed be deemed null and void.