Edited by Surya Deva and David Birchall
Chapter 14: Human rights law and the investment treaty regime
In its current form, the international investment treaty regime may stymie the business and human rights agenda in various ways. The regime may incentivize governments to favour the protection of investors over the realization of human rights. Investment treaty standards enforced through investor–state arbitration risk adversely affecting access to justice for project-affected rights holders. More broadly, the regime contributes to a system of global economic governance that elevates and rewards investors’ actions and expectations, irrespective of whether they have adhered to their responsibilities to respect human rights. Without comprehensive reform, investment treaties and investor–state arbitration will continue to interfere with the realization of human rights and broader public interest objectives. This chapter provides an overview of the interaction between international human rights law and the investment treaty regime. It highlights the challenges that arise from tension between human rights and investment norms, including the impact of the investment regime on the ability of host states to regulate and on access to justice for investment-affected rights holders. The chapter also explores whether and how human rights issues have been addressed by the investment regime to date, highlighting developments in treaty drafting practice and responses to human rights argumentation by investment tribunals. It notes the shortcomings of current approaches, and concludes by briefly setting out some options for reform.
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