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Edited by Yannick Radi

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Edited by Yannick Radi

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Ursula Kriebaum

With the growth in the number of investment treaties and investment treaty arbitrations, criticisms have arisen that the investment treaty regime has an adverse impact on the protection of human rights. It has been argued that it puts States in situations in which they face conflicting international legal obligations under the two regimes. This chapter looks at four constellations to analyse the current relationship between international investment law and human rights law. First, it addresses cases involving allegations that the human rights of the investor have been violated in the context of State interference with an investment. Second, it discusses situations involving allegations that the investor’s actions have violated the human rights of the host State population. Third, it analyses the implications of host States amending their legislation to better comply with human rights obligations. Finally, it analyses cases where the host State invokes human rights to justify non-compliance with investment protection provisions during an economic crisis.

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Rodrigo Polanco Lazo and Rodrigo Mella

The relationship between international investment and human rights represents a troublesome matter to States that must balance compliance with their international obligations under human rights instruments with the protection of the interests of the investors guaranteed by international investment agreements. This chapter examines cases involving Latin American countries, drawing parallels between the different approaches used by the Inter-American Court of Human Rights and investment treaty arbitral tribunals in disputes that involve both foreign investment and human rights. Closely examining the La Oroya and Renco cases against Peru and the Chevron/Texaco and different human rights cases against Ecuador, we examine whether there is an interaction between both fora, either competitive or collaborative, or if they are in contradiction or isolation. To provide a comparative perspective, the Yukos cases against Russia, brought both before the European Court of Human Rights and several investment arbitral tribunals, are briefly addressed.

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Maria Fanou and Vassilis P. Tzevelekos

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.

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Laurence Boisson de Chazournes and Rukia Baruti

Transparency trends in international human rights law and international investment law indicate a move towards convergence of procedure and substance. While procedurally, the rights of the public to information and participation under international human rights law have been long established, these are now increasingly emerging in the field of international investment law. Furthermore, acceptance of amicus curiae submissions by human rights bodies and investment arbitration tribunals is a clear manifestation of transparency in both international human rights law and international investment law. Substantively, public participation in governance-related decision-making processes under human rights law is gradually being mirrored under international investment law due to the shared public interest concern for greater transparency. While transparency in both fields is generally desirable, there is a need to ensure a balance between transparency and privacy to avoid jeopardising the integrity of decision-making processes.

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Valentina Vadi

What role, if any, do human rights and investments play at the WTO? Although the law of the World Trade Organization (WTO) does not govern foreign direct investment in general, some WTO Agreements govern aspects of it. Moreover, some of the cases adjudicated at the WTO have touched upon several human rights including civil and political rights, economic, social and cultural rights as well as ‘third generation’ rights. This chapter aims to uncover the various dimensions of the complex interplay between trade, investment and human rights, focusing on some case studies. This chapter concludes that while a number of legal tools can foster the reconciliation of opposing interests under WTO law, much remains to be done to ensure better coherence between theory and practice.

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Gwen Lehane

The World Bank is arguably the single most important international agency with a mandate to deal with extreme poverty and human rights, with its goals of eliminating poverty and boosting shared prosperity. In spite of this fact, the Bank has declined to incorporate internationally recognised human rights standards into its work, leading some to brand it a ‘human rights free zone’. This chapter will first explore the reasons behind this historical aversion, examining the evolution of the Bank’s mandate since its inception. We will then move on to consider the role the Bank’s safeguard policies, as well as its procedural safeguards, play in effectively fulfilling human rights. Although these safeguards make no reference to human rights, we shall assess whether they in essence operate as an effective substitute for a binding human rights policy. A number of mass human rights violations in the context of Bank-funded projects, as well as gaps and flexibility in these safeguards, may lead some to conclude that these safeguards are in fact not ‘separate but equal’. Finally, this work shall reference the new draft Environmental and Social Framework and whether this may go some way towards improving human rights protection of those affected by World-Bank-funded projects.

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Eric De Brabandere and Maryse Hazelzet

To date, corporations have had no direct human rights obligations under international law. Nonetheless, the increasing role of non-state actors in the international society and, as a consequence, the increasing impact of non-state actors on human rights can no longer be ignored. This chapter explores the factual and normative dimensions of international corporate responsibility for human rights violations. It also analyses existing mechanisms and new proposals for enhancing the accountability of transnational corporations, through the use of ‘soft’ instruments, domestic mechanisms or through self-regulatory mechanisms.