Sam Fowles provides legal counsel for MPs seeking to include human rights and environmental compliance in trade negotiations

12 May 2023

Planning and Environment

  • MPs support recommendations made by the Parliamentary Assembly of the Council of Europe (PACE) to give the environment and human rights the same treatment as investors in international trade agreements.
  • Cornerstone Barristers’ Dr Sam Fowles was legal counsel for PACE’s Rapporteur on Trade

MPs from the UK and Europe have joined together with other democracies to demand that international trade agreements embrace new and far-reaching protections for human rights and the environment.

The recommendations have been formulated over the past year by the Parliamentary Assembly of the Council of Europe (PACE), a body of 46 countries whose mission is to defend and champion democracy, human rights and the rule of law that was originally founded by Winston Churchill and others after the Second World War.

Cornerstone’s Sam Fowles served as legal counsel to PACE’s Rapporteur on Trade, Geraint Davies MP.

International trade and investment agreements aim to provide preferential terms of trade between state parties. Many also confer special rights on select groups, loosely defined as “international investors” (generally multi-national corporations). Such “investment protection provisions” give investors powers to sue national or local government if they take action to protect citizens’ public health and environment which impacts on investors’ future expected profits. The cases are generally tried in secret courts called Investor State Dispute Settlement (ISDS) arbitrations. These ISDS provisions have been used to overturn environmental protections, prevent governments from fining companies which pollute protected areas, block bans on tobacco advertising and intimidate new legislation. Citizens cannot benefit from ISDS in their own country.

In 2020 a UK court found that such agreements could be used to force parliament to change UK law.

In 2015 the EU committed to moving away from ISDS and establishing an open and accountable “Investment Court System”. This followed the collapse of the Transatlantic Trade and Investment Partnership (TTIP), a proposed treaty between the EU and USA which would have dramatically expanded ISDS. Since Brexit, however, the UK has revived ISDS. With its accession to the Comprehensive and Progressive Agreements for Trans-Pacific Partnership (CPTPP) trade agreement, the UK has increased its liability to ISDS claims to its highest level in history. The deal has been criticised as “making a mockery of the UK’s climate ambitions” while adding just 0.08% to the economy.

PACE’s far-reaching new proposals aim to give the environment and human rights the same or better treatment than international investors.

Sam Fowles of Cornerstone Barristers served as counsel to the Rapporteur on Trade Geraint Davies MP. Fowles said:

“It’s been an honour to assist with the important work of Geraint Davies MP and others at the Council of Europe. The scale of their achievement should not be underestimated. Since Brexit (if not before) international trade and investment agreements have been dominated by secret meetings between unaccountable officials and ministers. For some time now, the sector has been dominated by agreements which take power and control out of the hands of ordinary people and provide little or no economic benefit. PACE’s proposals will put citizens at the centre of international trade.

“Trade and investment treaties have, for a long time, contained chapters purporting to protect human rights, the environment, and labour standards. But, without any meaningful mechanism to enforce those rights (and without any clear statement that they accrue to citizens, not governments), they were essentially meaningless commitments. For rights to be real they must be enforceable, and citizens must be trusted to enforce their own rights if governments don’t live up to their commitments. These proposals show how we can grow the economy and become “global Britain” (or “global France”, or “global Germany”, or “global any other country in Europe”) through embracing meaningful human rights, environmental protections, and labour standards in trade and investment agreements.

“While PACE’s motion is not binding on governments, it represents a powerful political and moral demand for a new approach.”

The recommendations were developed and presented by the PACE’s Rapporteur on Trade, Geraint Davies MP, who said:

“The balance of global power between fossil fuel investors and democracies is embedded in trade agreements and needs to change in favour of democracy, human rights and a sustainable global environment. These proposals in turn will have an impact on the balance of economic power between countries according to how quickly production is adjusted to become compliant with sustainability. These proposals adopted by the 46 member democracies of the Council of Europe, represent a turning point for all our futures. We cannot continue to export our manufacturing capability and jobs to foreign more carbon-intensive producers. China now produces more greenhouse gases than US and EU combined and these proposals will support, for instance, local electric-arc steel production in place of dirtier imported steel.

“Carbon border taxes and checking supply chains for human right abuse will reduce the loss of jobs from our democracies and provide the conditions to build stronger, greener economies which will help to both sustain our values and save our planet.

“If products which rely upon fossil fuels and human rights abuse are restricted then the future will be reshaped in favour of saving the planet and safeguarding universal human rights. This in turn will safeguard our democratic values on the basis of economic not military power.”

The recommendations by PACE can be read here.