Canadian Constitutional Challenge to NAFTA Raises Critical Issues of Human Rights in Trade and Investment Treaties

The adverse effect of international trade and investment agreements on the protection and enjoyment of human rights has been a growing concern among human rights NGOs and UN human rights bodies in recent years. Surprisingly, these concerns have not been translated into legal challenges to trade and investment agreements for their inconsistency with domestic human rights protections. A constitutional challenge to the investor-state dispute procedures under the North American Free Trade Agreement (NAFTA), launched jointly by three Canadian NGOs, may break new ground in this respect. It is not unprecedented for domestic courts to review international adjudicative regimes against domestic human rights standards. In recent years, however, despite the development of increasingly powerful adjudicative regimes for investors’ rights that impact upon constitutionally protected human rights in many countries, the responsibility of national courts to protect constitutional rights has been largely ignored. The Supreme Court has previously upheld the supremacy of fundamental human rights in both international and domestic law. This understanding of domestic and international human rights protections as interwoven is fundamental to the NAFTA claim. We hope that the increasing recognition of the link between trade and investment regimes and human rights at the international level will help to convince the Canadian courts and those in other jurisdictions to fulfil their responsibility with respect to one of the most critical human rights issues of our time