TTIP negotiations in the shadow of human rights and democratic values

Abstract

In early 2013, based on the recommendations of the EU–US, High Level Working Group on Jobs and Growth, the presidents of the European Council, the European Commission (the Commission) and the US announced the initiation of negotiations on a major free trade agreement between the two blocs, termed the Transatlantic Trade and Investment Partnership (TTIP). The TTIP initiative promises significant economic development for the Transatlantic Free Trade Area (TFTA) and provision for investor–state dispute settlement (ISDS), which is mainly associated with international arbitration under the International Centre for the Settlement of Investment Disputes (ICSID). Respondents to a public consultation on TTIP, representing a wide spectrum of EU civil society organisations, expressed concern over ISDS’s impact on EU Member States’ right to regulate in the public’s interest, if investors are armed with the right to launch international proceedings to challenge national policy. Similar concerns were expressed over the secretive nature of the negotiations, with many critics pointing to democratic values and human rights as the bedrock of a civilised society. These concerns cast a shadow of uncertainty over the intended and unintended consequences of TTIP and, in particular, its encroachment on democratic values. In response to the rejection of ISDS, the Commission released proposals for an international investment court in August 2015. We argue that these reforms are merely cosmetic and are unlikely to alleviate some of the concerns raised over ISDS and, in particular, its intrusion on national public policy. The aim of this article is threefold. First and foremost, it examines the nature of the TTIP proposals with particular emphasis on the international investment court. The aim is to highlight how the secretive negotiations have undermined the most basic notions of democracy such as transparency and sovereignty. Secondly, it highlights areas where the fundamental principles of human rights have been undermined by the TTIP negotiations. Thirdly, the proposal for an international investment court is critiqued, especially on the inclusion of broad fair and equitable treatment (FET) standards that are likely to promote the same unfettered rights as those found under ISDS. Ultimately, a circumspect conclusion that ties together the various strands of argument through the paper is reached.