A/69/299 public interests and legitimate, expropriation by the State “did not alter the legal character of the taking for which adequate compensation must be paid”. 47 56. The high cost of arbitration and the threat of an adverse judgement can create a chilling effect on States, dissuading them from fulfilling their right to health obligations. 48 These disputes may also deplete States’ resources, which can affect their ability to progressively realize the resource-dependent aspects of the right to health. 57. Although international investment agreements may contribute to the economic development of a country, States should ensure that protection of human rights, including the right to health, is incorporated into those agreements. Human rights must be respected, protected and fulfilled at all times, and shoul d be the primary concern of all action by States. International investment agreements should therefore expressly provide for States’ human rights obligations, which should be able to override investors’ rights in specific cases. 58. The ability of individuals to enjoy their right to health cannot be subject to contractual rights of investors, given that the right to health is fundamental to the dignity of individuals. 59. States should review the current system of investment treaties to create a level playing field. During negotiation, review or renegotiation, international investment agreements should ensure that States have the right to change laws and policies in furtherance of human rights, regardless of the impact of such change on investor rights. Some 40 States have already begun renegotiating bilateral investment treaties to minimize their vulnerability to disputes and to limit investor rights. 49 In 2011, Australia amended its trade policy to exclude provisions in trade agreements that could “limit its capacity to put health warnings or plain packaging requirements on tobacco products or its ability to continue the Pharmaceutical Benefits Scheme” 50. Until international law can hold transnational corporations directly accountable for their violations of human rights, States should incorporate provisions in international investment agreements that enable States to hold transnational corporations liable for such violations under the domestic law of either the home or the host State. States should also ensure that their ability to implement humanrights-friendly laws is not in any way hindered by the agreement. __________________ 47 48 49 50 14-59014 See International Centre for Settlement of Investment Disputes, Compania del Desarrollo de Santa Elena S.A. v. The Republic of Costa Rica, case No. ARB/96/1, 17 February 2000, para. 71. D. Gantz, “The evolution of FTA investment provisions: from NAFTA to the United States -Chile Free Trade Agreement”, American University International Law Review, vol. 19, No. 4 (2003), p. 684. See Mahnaz Malick, “Recent developments in international investment agreements: negotiations and disputes”, International Institute of Sustainable Development, 2011; Y. Haftel and A. Thompson, “When do States renegotiate international agreements? The case of bilateral investment treaties”, 2013; United Nations Conference on Trade and Development, http://unctad.org/en/PublicationsLibrary/webdiaepcb2014d6_en.pdf. See D. Gleeson, K. Tienhaara and T. Faunce, “Challenges to Australia’s national health policy from trade and investment agreements”, Medical Journal of Australia, vol. 196, No. 5 (2012), quoting the Department of Foreign Affairs and Trade of the Government of Australia. 17/22