Research Handbook on Human Rights and Investment
Show Less

Research Handbook on Human Rights and Investment

Edited by Yannick Radi

The interplay between human rights and investments is a key and complex issue in today’s world. To take stock of this importance and to tackle this complexity, this Research Handbook offers a unique multi-faceted approach. It gathers in-depth contributions which focus on the interplay between human rights and investments in various international legal regimes, economic sectors and regions. It also provides thorough analyses of the various types of accountability that may result from the activities of multinational corporations in relation to human rights. This Research Handbook is intended for practitioners, policy-makers, academics and students eager to understand the interaction between human rights and investments in all its dimensions.​
Buy Book in Print
Show Summary Details
You do not have access to this content

Chapter 3: The shared territory of the ECHR and international investment law

Maria Fanou and Vassilis P. Tzevelekos

Abstract

The chapter compares international investment law (ILL) with the ECHR system of human rights protection. First, it identifies key differences in the systemic features of the two regimes. Although they overlap to some extent in the protection they offer to property, they differ significantly. The ECHR system is unitary; unlike IIL, it operates on the basis of one single set of instruments. Mutatis mutandis, unlike IIL arbitration, the ECtHR is a last resort court that cannot be reached unless domestic remedies have been exhausted. IIL is available to foreign investors only; in the ECHR system the applicant’s nationality is irrelevant. The ECHR system is designed to cover a wide range of human rights – not only property/investment rights. Finally, the two systems differ significantly in terms of enforcement. The second step in the analysis focuses on property protection. To draw a parallel between the ECHR and IIL, the chapter discusses first the general framework of property protection under the ECHR and gives examples from the ECtHR practice with respect to foreign direct investment (FDI). Analogies are then drawn between the ECHR and IIL standards. The chapter identifies similarities and differences regarding expropriation (focusing on indirect expropriation, the sole effects and police powers doctrines, and the function of proportionality), FET (focusing on equity and legitimate expectations on the way these are protected by both regimes) and full protection and security (which is associated with due diligence and human rights positive effect). The third step in the analysis concerns limitations to investment/property rights. Occasionally, remedying or preventing human rights violations and the protection of general interest might make it necessary that states interfere with investment rights. Proportionality is crucial in this context as a tool allowing the establishment of priorities and assessment of the lawfulness of limitations. In comparison to IIL, the ECHR regime appears to better accommodate the idea of a fair balance between individual rights and general interest. Because the ECHR covers FDI from the perspective of human rights, it does not merely treat it as rights that need to be safeguarded, but also as a goal that can be limited when activities related to its promotion lead to the breach or endangerment of other human rights. Ultimately, even when the two regimes converge or overlap, the ‘tone’, that is, the way they safeguard and promote FDI differs. This is the natural consequence of their differing orientation and teleology.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.


Further information

or login to access all content.