The new frontiers of States’ duties to control nonState actors

Good morning, everyone. It is my honor and pleasure to introduce the keynote speaker of this conference today. I think we know a better, more appropriate speaker than Professor Olivier Deschutes. Professor Deschutes is a professor of law at the University of Louvain and at the Sciences Po in Paris, and a member of the global law faculty at NYU. He's been visiting many prestigious places, among them Columbia University and UC Berkeley. He was appointed the UN Special Rapporteur on the Rights of Food by the Human Rights Council in 2008, renewed in 2011. He has visited several countries, among them Benin, China, Cameroon, Canada, South Africa, Madagascar, Guatemala, Brazil, Nicaragua, and Mexico, and has published widely on these matters. He's an expert on social and economic rights, and on economic globalizations and human rights, and combines the focus on social and economic rights, and in particular the right to food, and the role of non-state actors in international law. And there's an obvious connection between the two, the connection being that non-state actors are responsible to socioeconomic divisions and misallocation of resources, and so the regulation of non-state actors fits exactly right into the question of socioeconomic rights, and gives motivation for our interest in regulating the role of non-state actors, and finding international law as a key tool in that regard. Raza Desheter published widely on economic and social rights, and on the relationship between human rights and development. Several, as a matter of fact, an astounding number of books and articles among them, International Human Rights Law by Cambridge University Press, second edition, 2014, Economic, Social, and Cultural Rights as Human Rights, Accounting for Hunger and the Right to Food in the Era of Globalization. These are some of the many important publications of Professor Desheter. Appropriately, he was awarded the prestigious Frank Key Prize for his contribution to international and European human rights law, and to the theory of governance. In 2017, he was elected the laureate of the James Baird Foundation Leadership Award for his advocacy for a sustainable food system. Let me add, on a more personal note, as I see many of you here are at the beginning of your career, and you see here an example, a model of a career of an engaged scholar who has both the scholarly track, the theoretical part, combining with involvement in society, trying to change things and to ameliorate conditions, and using international law as a tool for change. And so it's not only that Professor Desheter's areas of expertise that fit this program, this excellent program, very well. It is also his being a role model for young aspiring international lawyers. And so I congratulate the team that invited Professor Desheter for his acceptance of the invitation, and I invite Professor Desheter to give the keynote speech. Please join me in thanking him for coming here. Okay, well, a very warm welcome to all, and thank you very much to Professor Benbenissi for his very kind, overly generous introduction, which, of course, puts some welcome pressure on me this morning. I'm very delighted to be here and would like to thank, of course, Patrick and Cara and Natasha, wherever she is, for having made it possible for me to join you in Cambridge. And I would like to propose to start with a diagnosis, a diagnosis about the current situation in which states are, which I would call a state of semi-sovereignty. I have three propositions that summarize the diagnosis I would like to start with. And the first proposition is that the idea of state sovereignty that has been affirmed according to the classic history of international law, first with the Westphalian piece of 1648, has reached its apex in 1970 and is now behind us. But that is not a sort of questioning of the foundations of international law. Instead, it is very much a return to its core foundations. Remember that when Francisco de Victoria, in the years 1530s, and later, Grotius, the founder of our discipline, in his three volumes on the law of war and peace in 1625, they were very much keen to defend the idea that the colonizers had a right to travel the world in order to spread civilization. And part of the advocacy by Grotius in particular, who was at some point the paymaster of the Dutch East Indian Company, part of the advocacy was to say that large corporations that had a global reach and were able to link faraway regions to the Netherlands, to Portugal, or to Spain, had a right to travel and to settle on the shores of the new lands that were at the time being discovered in order to spread commerce. So today, as we are discussing the inability of the state to control transnational corporations, the semi-sovereign state in which states find themselves as a result of economic globalization, we very much encounter a similar situation to that that was imagined by the founders of the discipline. Indeed, if we turn to this very interesting discussion by Albert Hirschman of how interests came to guide the world and to tame the passions of the sovereigns, he has a very nice quote from Montesquieu, the L'Esprit des Lois of 1748, in which Montesquieu says the following, and I shall quote briefly from Montesquieu. Since the invention of the Bill of Exchange, says Montesquieu, the rulers have been compelled to govern with greater wisdom than they themselves may have intended. For owing to these events, which is the ability for wealth to travel from place to place, owing to this, the great and sudden arbitrary actions of the sovereign have been proven to be ineffective, and only good government brings prosperity to the prince. In other terms, the governments Montesquieu was writing in 1748 were disciplined by the fact that merchants could hide their wealth and move their wealth freely from place to place so that any arbitrary use by sovereigns of their power would be immediately sanctioned by capital fleeing from the jurisdiction and making it less easy for the sovereigns as a result to finance their wars. And in a footnote later in the same chapter, Albert Hirschman says the following, the fears and hopes aroused by the emergence of the various forms of movable capital as a major component of total wealth in the 18th century offer many interesting parallels with similarly contradictory perceptions caused more recently by the rise of the multinational corporation. And he was writing this in 1977 in this book, The Passions and Interests. So it is not a new story. The story of sovereigns being unable to really control transnational corporations, being semi-sovereign in that they are under the surveillance of the markets, and in which any arbitrary move by sovereign powers shall be sanctioned by their inability to tax the capital that has fled. Proposition number two is that states have become thus semi-sovereign in part. That's one part of the explanation as a result of foreign investors being granted extended forms of protection under international law. Many of you shall be aware that the number of bilateral investment treaties to have been concluded has risen very significantly since the first such treaties in the late 1960s. We had only a handful of bilateral investment treaties until the late 1980s. And then the 1990s were a period during which a vast number of such treaties were concluded. And you have here on this graph from UNCTAD, you have here an indication of the number of new BITs signed per year. This is the blue line with the crosses, showing that in the mid-1990s, there was a sudden significant rise of the number of BITs concluded, so that the total number of bilateral investment treaties by the end of this chart, around 2006, amounted to almost 2,000. And today, we are at an even much higher number, with about 3,200 bilateral investment treaties that have been signed. And many countries have also joined the International Convention for the Settlement of Investment Disputes between States and Nationals of Other States, the ICSID Convention, negotiated under the auspices of the World Bank in 1965, and that a large number of countries, these 150 states, according to the last count, have joined. Only two states, Bolivia and Ecuador, respectively, under Evo Morales and Rafael Correa, have left this treaty. But for the most part, it is a treaty that allows the establishment of arbitral tribunals to settle investment state disputes. And it is one other indication of the importance of investors' rights in contemporary international law. Indeed, whereas treaties protecting investors' rights were concluded, for the most part, in the 1990s, it is only now that the disputes are being presented en masse to international arbitral tribunals. This is a graph that shows how, starting in the late 1990s, about a decade after the wave of bilateral investment treaties were signed and negotiated, the number of disputes has started to rise. Some states, such as Argentina, are representing a very significant portion of these cases. But overall, it is a very impressive growth in the number of disputes settled before international arbitral tribunals that we witnessed, many of them established under the ICSID Convention that I've mentioned. So we have that as one first explanation for the fact that states today have become semi-sovereign. They cannot take a number of regulatory actions because of the fear that if they do so, they shall be sued by foreign investors, who will complain that they've been losing a profit, that the economic expectations they had legitimately built when arriving in the States were being disappointed, and they shall sue the States to obtain compensation. Another reason why states have become semi-sovereign is because these firms who have come to play an increasingly important role in economic globalization are able to play the states against one another, to practice what is referred to as regulatory arbitrage by essentially pressuring the states to make concessions in order to be able to attract or retain the capital that the states depend on for the creation of employment, for access to global markets, for access to technologies, and for the ability for the actors of the local economy to be better linked to global supply chains. Indeed, these are some of the expectations that states have when they try to attract foreign investors, when they try to create the conditions that shall be right for foreign direct investments to be attracted to the country. They hope that this will result in the creation of jobs, in transfers of technologies, in better connections to the global markets, and in local actors being able to join global supply chains. As a result of this, states make a number of concessions to investors, including the prohibition they agree to impose on these investors' performance standards. For example, to recruit from the local workforce, to supply inputs from local suppliers, or to transfer technologies to local partners. They grant tax holidays to the foreign investors that arrive in the country, and they grant a number of exemptions from social environmental regulations. The result, paradoxically, is that the foreign direct investments that they manage to attract through such concessions reduce the benefits that states might have expected from the arrival of foreign investors. In fact, FDI and the dependency of economies on the arrival of FDI shall result in the local economy becoming more fragile. If there's one economic shock, they shall be hurt most as capital will flee the country, as foreign investors will depart, and as the failure or the bankruptcy of one economy on which the state has become highly dependent for its exports shall result in that state suddenly being fragilized by the six-dozen shock. In addition, foreign investors compete with local businesses, making it more difficult for them sometimes to strengthen their own position, and the linkages with the local economy are sometimes very weak. So that what we witness in many cases is a dualization of the economy, foreign investors developing economies of scale and access to global markets and attracting consumers to their better products when the local actors actually suffer that competition from those major actors. So investment treaties end up being self-defeating. And what's more, they don't even seem to have been very effective in attracting foreign capital. In fact, when John Wrigley, the Secretary General, special representative on the issue of business and human rights, proposed to the Human Rights Council his guiding principles on business and human rights, which, as you know, the Human Rights Council endorsed in June 2011, he warned about such concessions being made to foreign investors through economic agreements of various sorts, including bilateral or multilateral investment treaties. He wrote the following, and I quote here, economic agreements concluded by states, either with other states or with business enterprises, such as bilateral investment treaties, free trade agreements, contracts for investment projects, create economic opportunities for states. But, he said, they can also affect the domestic policy space for governments. For example, the terms of international investment agreements may constrain states from fully implementing new human rights legislation or put them at risk of binding international arbitration if, indeed, they do so. Therefore, states should ensure that they retain adequate policy and regulatory ability to protect human rights under the terms of such agreements while providing the necessary investor protection. Indeed, the studies we have concerning the impacts of concessions made to investors in bilateral investment treaties or in investment chapters in free trade agreements, for example, seem to demonstrate that they have close to zero effect on attracting foreign investors to the jurisdiction concerned. And that is what, in this book, Foreign Direct Investment and Human Development, with colleagues of mine, including economists, we tried to show. In fact, when we examine the reasons why foreign investors arrive in a country, we identify some reasons that have to do with the policy framework that is created for them, some economic determinants of the arrival of FDI, and some factors that have to do with business facilitation. Amongst the policy determinants that may explain the arrival of FDI, there is, of course, the conclusion of international agreements on foreign direct investment, including bilateral investment treaties. But really, the key reason why foreign investors arrive in a country has nothing to do with these policy determinants, but has everything to do with the economic determinants, in other terms, the economic conditions that investors expect to find in the host country. And depending on the type of investment concerned, the investors will come to a country because there's a huge market on which they want to be present. This is why many go to China or to India these days. There's a rising global middle class there that they want to have access to. So they are present in these countries for market-seeking motives. Or they know that the subsoil of the country is very rich in minerals, in gas, in oil, and they want to exploit the subsoil. So this is resource or asset-seeking investment that's concerned here. Or they want to produce where it's most efficient, because the workforce is cheap, because the conditions are good for low-cost production in globalised supply chains. But these market-seeking, resource-seeking or efficiency-seeking reasons why investors come to a country have actually very little to do with the conclusion of bilateral investment treaties, or more broadly, with the conditions that are created to reassure investors as to the conditions or the rights that they shall be granted. In fact, today, most countries are aware of this, and the only reason they still make these concessions to investors is basically for reasons of reputation. They want to be perceived as welcoming foreign investors. This is part of the brand they try to sell on global markets. It is part of the reputation they want to maintain. And it is for signaling reasons that, therefore, they conclude such treaties and provide such concessions. The result, however, of this desire of states to maintain their reputation as a safe haven for investors is that they tend to make enormous concessions and that they fall into a sort of beggar-thy-neighbor type of policy leading to social, environmental and fiscal dumping. It is, of course, a complex matter, and, for example, if you want to understand how, in a particular country, labor rights or working conditions evolve, you should take into account a number of factors. Too many to really explore in any detail here. For example, the weight of the labor unions, the ability for economic growth to increase welfare benefits that shall benefit workers, the positive impacts that transnational corporations operating within the country may have in showing how employees can be better treated, the competition that some actors face on local markets that may lead them to weaken labor conditions in order to save costs. But one major factor that determines labor rights and conditions is the desire in labor-intensive industries to remain competitive. And that is the source of what we call social dumping, i.e., the tendency of countries to refrain from improving labor rights and working conditions in order to maintain the competitiveness of the most labor-intensive parts of their production. And it is, unfortunately, a widespread belief across governments that it is by maintaining the wages low, restricting the rights of workers, weakening the weight of the unions in deciding on labor conditions and wages, that they can maintain competitiveness in the global economy. For example, when at the first WTO ministerial conference in 1996, Bill Clinton tried to propose a social clause within the WTO agreements, the answer that he received from the ministerial conference and developing countries in particular is that the WTO members reject the use of labor standards for protectionist purposes. And they agreed that the comparative advantage of countries, particularly low-wage developing countries, must in no way be put into question. And the idea is also reflected, perhaps more surprisingly, in the ILO Declaration on Fundamental Principles and Rights at Work that lists, as you know, four major principles that all ILO member states should comply with, whatever the ILO conventions they've signed up to, in which we read that states should not use labor standards for protectionist trade purposes and nothing in the declaration and its follow-up shall be invoked or otherwise used for such purposes. The comparative advantage of any country should in no way be called into question by this declaration and its follow-up. So in other terms, there is still this very strong belief by states that their comparative advantage in the global economy may reside in not improving workers' rights. In other terms, in order to remain competitive, I shall keep my population poor. And that is, unfortunately, one reasoning we very often see here. I mentioned social dumping, but today many commentators are especially concerned with fiscal dumping. In other terms, with the race to the bottom that we see in corporate taxation in particular, in which countries try to create the conditions that are, from the fiscal point of view, the most attractive to international investors. And many practices, most of them perfectly legal, allow these transnational firms to put pressure on states to obtain such tax concessions. Amongst those practices is, of course, transfer mispricing, or trade misinvoicing. 30% today of global trade is between different companies of the same multinational group. And it is very common for those companies to trade between themselves in order to pay taxes where the taxation rates are the lowest. And that is especially easy to do if you have one company, for example, that owns the intellectual property rights on the products sold across the world, and that invoices to all the companies of the group a very high price for the use of these intellectual property rights, these trademarks or these inventions that they sell to customers all around the world. And that is, for example, the tactic that Apple is using by having its IP rights declared in Ireland so that all the profits made in the world by Apple selling to consumers all over the world shall actually be declared in Ireland where the taxation rates on Apple are extremely, extremely low. Or then, within the same multinational group, companies lend money to one another at sometimes quite high interest rates so that, again, the profits are reduced in the jurisdictions where taxation rates are high and the profits are declared, if at all, in the jurisdictions where the taxation rates are the lowest. Or then, finally, there's a tendency to use double taxation treaties. You do not declare your profits in one jurisdiction because they are meant to be declared in another jurisdiction. But it so happens that in that other jurisdiction, you benefit from a tax holiday, from a very low taxation rate, or indeed from zero taxation whatsoever. So we have social dumping. We have fiscal dumping. We have, finally, environmental dumping. It's very striking that since industrialized countries have agreed in the Kyoto Protocol of 1997 to gradually reduce, or at least not allow to increase further their greenhouse gas emissions, a large number of companies have decided to outsource the most polluting parts of their production cycles. And trade has grown far faster than greenhouse gas emissions have been reduced, or at least their increase stemmed, as a result of this outsourcing of pollution. Look at this map, for example, that shows how the trade routes have been very much characterized by the fact that rich countries, industrialized countries, import from countries where the kinds of production are the most highly polluting in terms of greenhouse gas emissions produced. For example, what we import from China, from Russia, is far more carbon intense in terms of equivalent of carbon dioxide per dollar of the value of trade than what we export to these countries. So basically, we've been outsourcing pollution in order to comply on paper with our commitment to reduce greenhouse gas emissions. But that has been a very hypocritical position because actually we compensate for what we don't emit in terms of greenhouse gases by importing ever more from jurisdictions who have not made the same commitments. And this is, again, illustrated by comparing what countries, such as Russia, China, India, for example, export or import, looking at the carbon intensity, respectively, of these exports and imports, to what countries such as Italy, Germany, or indeed the UK do. As you can see, the exports of Russia are far more carbon intensive than their imports. Similarly for China and India. And it's the opposite for European countries, such as those I've mentioned. So this is one example of environmental dumping. The fact that economic globalization has allowed companies to choose where to produce unhindered by trade barriers or by barriers to investment. And thus, it is a natural tendency for these companies in certain sectors to produce where the environmental regulations are the most lax, where the constraints on the technologies they use are the least demanding. So states have become semi-sovereign as a result of all these developments. Widespread, far-reaching rights being granted to investors through various international agreements. The use by these investors of international arbitral tribunals in order to put pressure on states not to adopt regulations that might reduce their expectation to make profits. The pressure on states resulting from the facility with which transnational corporations can choose where to produce, where to declare the profits, where to put people to work in increasingly segmented global supply chains. All this leads to a situation in which states have become semi-sovereign, unable as they are to develop certain policies at home, including for the promotion and protection of human rights because of the pressures under which they are in the global economy. So in this context, what can be the task of international lawyers? And I would like to very warmly thank Professor Eyal Benvenisti for his introductory remarks because I do believe that international law is actually more relevant than ever if it can stand up to these new challenges that are raised by economic globalization. And I would say there are a number of areas which today are at the cutting edge of international law, at the intersection of international human rights law and international economic law, that deserve the attention of this new generation of international lawyers. First of all, I think there are a number of measures that states might be encouraged to take, but may not dare take unless they are reassured that this is consistent with their obligations under the treaties they have signed up to. And let me take, perhaps, a few examples. And the first one is the ability for states to restrict investors' rights in the name of pursuing public welfare objectives. Now, I took as one example the most recent model bilateral investment treaty proposed by the United States to its partners, the 2012 version, adopted under the Obama administration. But it's not very different from the 2004 version that preceded it. And that is the article in that model BIT that defines what unlawful expropriation is, under which conditions may be set that certain regulatory actions by one of the states concerned are equivalent to direct expropriation to a taking, to de jure expropriation. And this provision defines what indirect expropriation is. It is, and I quote, where an action or series of actions by a party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure. But then we read, this is paragraph B, except in rare circumstances, non-discriminatory regulatory actions by a party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expropriation. So states may do a number of things, provided they are not discriminatory, provided they are not disproportionate, provided they are genuinely decided, these measures, for the pursuance of certain public welfare objectives that are recognized as legitimate. And of course, the promotion and protection of human rights are part of these legitimate public welfare objectives. The real problem here has to do with the vagueness of this terminology. The words are extremely general and vague, and many countries may fear that if they are not absolutely certain not to be sued by a foreign investor for the measure they intend to adopt, they risk being sued and thus lose the hard-won reputation for being a safe business haven that they've acquired through years and years of adopting policies characterized by these trades vis-a-vis foreign investors. And I know for a fact that many poor countries with very little access to high-quality legal advice have refrained from adopting certain regulations in the social field, in the environmental field, for example, or in the field of taxation, because they fear that although it was perfectly legitimate for them to do this, they would be accused of going too far, of taking the investor by surprise. I believe that perhaps one technique to avoid this is to allow for a sort of pre-referral procedure. Before a country is being sued by a foreign investor, before an arbitration tribunal, perhaps that country should be authorized to request an authoritative opinion, consultative but authoritative nevertheless, reassuring the state that it is acting consistently with its commitments under investment treaties, in order not for these treaties to have the chilling effect that today they have, chilling states from adopting certain regulatory measures. That is, I would suggest, the first challenge international lawyers may wish to meet. The second challenge is to link better the different regimes of international law to one another, to avoid international investment law trumping other international law regimes, and particularly the human rights law regime. We are now at a very interesting stage of the development of international investment law, in which there is a genuine attempt to read international investment law in the light of other international obligations of states. And I'd like to take as one illustration of this the very important arbitral award adopted on 8th of December, 2016, by an exit tribunal, in the case of Ylbasso and others, against Argentina. Now, Ylbasso and others, these are subsidiaries of a Spanish corporation, and they invoked a Spain-Argentina bilateral investment treaty to complain that, as a result of the devaluation of the peso in Argentina, their profit expectations were being disappointed, and they sought compensation from Argentina. This is an issue many of you shall be familiar with. And what's really interesting is that Argentina responded that they had to comply with the right to water, the human right to water, recognized by the UN General Assembly in 2010. That, Argentina said, not only Argentina was to take into account, but also the investors themselves. So much as these investors wanted to increase the tariffs imposed on households for the use of the water that was distributed in the province of Buenos Aires, they had to comply with the right to water. And of course, the answer of the companies was to say, well, we are bound by human rights. Human rights are addressed to states, not to private actors. And the answer of the arbitral tribunal was the following. And I quote here. It's a very long arbitral award. So this is a very compact version of one part of the very long award that was adopted in December 2016. The arbitral tribunal says the following. The view according to which corporations are, by nature, not able to be subject to international law, and therefore not capable of holding obligations as if they would be participants in the state-to-state relations governed by international law, that view is now outdated. And the arbitral tribunal cites the guiding principles on business and human rights for the proposition that international law accepts corporate social responsibility as a standard of crucial importance for companies operating in the field of international commerce. This standard includes commitments to comply with human rights in the framework of those entities operations conducted in countries other than the country of their seat or incorporation. That must be seat of incorporation. The classic view according to which, since companies are not subject to international law, they cannot impose obligations under international human rights law, that view, says the tribunal, is untenable as a general statement. Quite to the contrary, it says the human right for everyone's dignity and its right for adequate housing and living conditions are complemented by an obligation on all parts, public and private parties, not to engage in activity aimed at destroying such rights. So in other terms, what we see is the timid emergence of a clean hands doctrine in international economic law, in which, as a condition for their rights being protected under investment treaties, corporations shall have to comply with the very same human rights obligations that are imposed on the states under the jurisdiction in which they operate. I think it's a very interesting development. Although, to be fair and not to give a biased presentation of this award, it should be added immediately that the right to water was considered not to be precise and detailed enough to bind private actors. The third task for international lawyers, it seems to me, is to think about how to link social rights, labor rights, and environmental standards to trade policies. I genuinely believe that trade can be put in the service of human development objectives and sustainable development goals, in particular as adopted by the UN General Assembly in 2015. But to achieve this, we must connect trade policies to compliance with certain labor and environmental standards. And we must define the conditions under which states may make access to markets conditional upon the companies using these export routes complying with certain requirements. And this is what authors such as Joe Stibitz and others have argued in various books. I believe there's a very urgent task for lawyers to reassure states that it is not against the disciplines imposed on them by WTO agreements in particular that they can impose such conditionalities. Fourth, we are now witnessing a very impressive rise of the idea of extraterritorial human rights obligations. And perhaps the most recent expression of this idea is in the general comments number 24 adopted in June 2017 by the Committee on Economic, Social, and Cultural Rights on the issue of business and economic, social, and cultural rights. In the general comments, we very clearly express that states are under a duty not only, which is obvious, to protect economic and social rights under their jurisdiction by controlling corporations. They also must impose on the corporations over which they can exercise jurisdiction duties to comply with economic, social, and cultural rights. What are those corporations under the jurisdiction of the state that the state therefore has a duty to control? Well, these are the corporations that either are incorporated under that state's laws, are registered in the state, and have their statutory seat in that state, but also corporations which have their principal place of business in that state or their central place of administration. In other terms, if a corporation is controlled by directors who are meeting in state A, that state must control that corporation's activities wherever they may take place. It is, of course, a contested doctrine. I'm aware of this. But I would add that it is not the most far-reaching statement we have in this area. If you turn, for example, to the general comment number 16 of the Committee on the Rights of the Child, adopted in 2013, on the very same issue, business activities and the rights of the child, they say that states should control all corporations not only of their nationality, which is more or less the idea expressed here, but all corporations that have a significant presence in the state concerned. We examined carefully that position of the Committee on the Rights of the Child, and we decided within the Committee on Economic, Social and Cultural Rights not to go so far as that, because that would be giving a premium to the states that have the largest economies, that host the largest numbers of transnational corporations. For example, a country such as the United States would basically be able to act as the policeman of the world if the United States were told that they have a duty to control all corporations that have a significant economic activity under the jurisdiction of the US. So we believed that this was going to go too far, giving a huge premium to the largest economies, but we do insist in this general comment number 24 on the duty of all states to control the economic actors over which the state can exercise jurisdiction, thus allowing the states where these actors operate not to be pressured by those actors to reduce the protection they provide to economic, social and cultural rights. It's a way, in other terms, to be fair in international relations. If you control your own actors to avoid them committing human rights violations abroad, you make it much easier for those states where these actors operate to themselves discharge their duty to protect human rights under their jurisdiction. Finally, and I will close with this, I believe the next stage in this discussion shall be to strengthen a duty of states to cooperate internationally in order to close the gaps that we still have in international economic governance. And we have, in fact, in many treaties and particularly in many human rights conventions, a rhetorical affirmation that states have a duty to cooperate with one another in order to fulfil the promises of these treaties or conventions. Now, some lawyers have dismissed this idea that there is such a thing as a duty to cooperate. After all, at the heart of the state's sovereignty is the idea that they may choose whether or not to be bound by an international agreement. So how on earth could you say that a state is forced to negotiate an international agreement in order to address a problem that has a transnational dimension? To say that, however, is to confuse two things. One thing being to conclude an international agreement which, by definition, cannot be imposed on states. Otherwise, this would amount to a form of coercion, if you wish. But another thing is a duty imposed on states to enter in negotiations and to negotiate in good faith in order to provide a multilateral answer to a problem of a transnational dimension. And I believe that that second duty, that duty to cooperate in good faith in the search of solutions, is one that today is one that can be affirmed and indeed strengthened further. Remember the famous shrimp-turtle case presented to the appellate body of the WTO dispute settlement mechanism, for example, in which, as you may recall, the US was accused by Malaysia and others to impose unilateral conditions on the import of shrimps in the US in order to protect sea turtles, an endangered species. What was the problem, according to the appellate body? The problem was that the US had not, in good faith, sought to achieve a multilateral solution or to move towards a multilateral answer to that problem of sea turtles being endangered. And so the US had resorted to a unilateral measure, doing self-justice, as it were, instead of proposing to its trading partners that they look at the problem together and find a commonly agreed solution. That shows that in a quasi-judicial setting, that of the appellate body of the WTO, it is quite possible to assess whether SAIT has, in good faith, tried to negotiate a multilateral solution. And in a report I recently presented to the Working Group on the Right to Development, to be more precise, that is now public but shall be presented on 24th April in Geneva, I tried to build on this idea and to try to provide some criteria on the basis of which one could identify what means to negotiate in good faith, what are the conditions that can be looked at to examine whether SAIT has, indeed, sought to engage in multilateralism in good faith rather than acting unilaterally to address certain transnational problems. Let me finally close by saying that this issue of whether states can be forced to negotiate in good faith multilateral solutions to answer transnational problems is actually quite central to the discussion launched since three years now within the Human Rights Council on the new Treaty on Business and Human Rights. As you are aware, with the support of some other states such as South Africa, Venezuela, Cuba and Bolivia, Ecuador proposed in 2014 that negotiations be opened on a new international legally binding instrument on the issue of business and human rights. Why did Ecuador do this? Well, for two reasons. First of all, because the guiding principles on business and human rights endorsed by the Human Rights Council in June 2011 still are purely voluntary in nature and because Ecuador was acutely made aware of the gaps that exist today in the area of international cooperation to tackle transnational corporations as a result of the Texaco-Chevron case resulting from the large-scale pollution in Ecuador and Peru committed by Texaco and now brought up by Chevron between 1962 and 1994. In this very complex case, basically Ecuador has tried to ensure that the victims of pollution in Ecuador would be compensated by Chevron for this 30 years long pollution of their soil and water. But these victims of this pollution have failed to obtain from the US courts that they recognize the judgments delivered by the Ecuadorian courts and confiscate the assets of Chevron to ensure that they are effectively compensated. And so Ecuador has good reason to push for a new treaty that would impose on states to cooperate with one another to better regulate transnational corporations. I believe, unfortunately, that the conditions under which Ecuador is making this proposal are far from ideal. Not least, you still have, by the way, this is the not finally edited version, you still have the last minute changes that were made here in red. But you see, one of the provocations in this proposal of Ecuador is in the very famous footnote number one to this resolution of the Human Rights Council in which Ecuador basically insisted on saying that the treaty should apply to transnational corporations and other business enterprises. The other business enterprises being business enterprises, and I quote, that have a transnational character in their operational activities and the treaty should not apply to local businesses registered in terms of relevant domestic laws. That's, of course, as any international lawyer will immediately recognize a mistake. There is no such a thing as a transnational corporation distinct from national companies. A transnational corporation is simply a group of domestic corporations that are connected by an investment nexus. So I think this is from the legal point of view a nonsense, a non-sequitur, but it was perceived by European states and by Western states in general as a pure provocation, as if Ecuador wanted to challenge the big multinational corporations that are often based in the West and wanted to keep the local corporations in developing countries completely off the hook. And so, unfortunately, the negotiations started on the very wrong footing, if you wish, leading to very antagonistic positions being adopted on both sides of the argument. Nevertheless, I believe it is important that states enter in such negotiations in good faith, genuinely seek to achieve agreements to close the gaps that now exist in global governments and to reconcile the development of economic globalization with the duties of states to protect and promote human rights. And that is why the Committee on Economic, Social and Cultural Rights, in its general comment No. 24, makes a very discreet, because we can't say to states you have to negotiate a treaty on business and human rights, but we make a very discreet, a very modest reference or allusion to that where we say improved international cooperation should reduce the risks of positive and negative conflicts of jurisdiction, which may result in legal uncertainty and informed shopping by litigants or in an inability for victims to obtain redress. And we welcome in this general comment any efforts at the adoption of international instruments that could strengthen the duty of states to cooperate in order to improve accountability and access to remedies for victims of violations of government rights in transnational cases. And indeed, we provide some examples of other treaties, particularly ILO conventions, where multilateral solutions were found to transnational problems of a similar nature. So I chose for you today to launch these two days of discussions on how international law relates to non-state actors. I think a maxim that suits very well the topic of this lecture, the secret of change is to focus all of your energy not on fighting the old, but on limiting the new. Thank you very much.