It does have a priority in the sense that trade is a self-enforcing mechanism. If one side breaches a trade agreement, it risks retaliation from the other party. In contrast, with regards to human rights, if one side tortures, you cannot retaliate by torturing in turn. It can depend on reciprocity in a sense, but the Inter-American Court has issued a ruling in a case involving Paraguay where the defendant state, Paraguay, invoked a bilateral investment treaty with Germany in its defense of the alleged violations of indigenous land rights. The Court said very clearly that
a bilateral investment treaty cannot be invoked as a defense to violations of human rights.
They very clearly prioritize human rights because it is a human rights tribunal. So one way to redress this imbalance is to give human rights courts greater latitude to apply their own law in the face of investment and trade treaties that might involve the state in violating human rights.
To what extent could the ten years old United Nations Guiding Principles on Business and Human Rights (UNGPs) rebalance the current asymmetry of international law as Professor Bruno Simma pointed out? What role should the regulatory power of sovereign states along with the principle of subsidiarity play in it?
One of the things I think is very important in the UNGPs is that
it also emphasizes not only the host state’s responsibility but the home state responsibility
(that is, where the corporations are located in law). I think that is very important development. It could help alleviate this race to the bottom by saying not only the host but the home state has responsibility to control the activities of their corporations no matter where they take place. So I am very in much in favor for the UNGPs, I am just sorry that they are not legally binding.
Some of the international human rights mechanisms already began to apply the UNGPs. How do you see this development and the potential dialogue among these mechanisms?
I think it would be good if they have a dialogue with trade representatives. They are now speaking to themselves, and they rarely interact with trade representatives, which they would need to do in order to really have an impact. They do talk sometimes to corporate representatives but a regular dialogue between trade, investment, environment and human rights would be a good thing. For example,
investment courts are very reluctant to apply human rights just as human rights courts are still reluctant to take into consideration the UNGPs.