Andrea K. Bjorklund
The principle of sustainable development is often viewed as sitting in opposition to international investment law, but this oppositional view is not fruitful, as investment is critical to achieve sustainable development goals. While it is true that most investment treaties focus on, and thereby apparently prioritize, the protection of investments – thus making it necessary for tribunals rendering awards to find avenues to introduce the host states’ other obligations into their decisions – tribunals have also proved themselves capable of doing so. But it is also true that it would be desirable for investment treaties themselves to more clearly identify what policy priorities states would like to further, and what kind of hierarchy among those obligations the state envisions going forward. One of the goals of international investment law is to create a predictable framework for investments; because investments will inevitably be made in a complicated matrix of competing priorities, investors would benefit from having more information both about what protections investment law gives them and what other domestic policies states favour or are likely to embrace in future. Thus, states should be, and indeed are, undertaking initiatives to more clearly reconcile the protection of investments with the protection of human, animal and plant life and health, and with environmental protection. They are accomplishing this by amendments to investment treaties, although the most ambitiously amended treaties that would most successfully further the consideration of sustainable development principles have not been adopted. Nonetheless, incremental changes to investment treaties have given states more regulatory flexibility in the context of the application of those treaties, and tribunals more flexibility in their decisions.