Research Handbook on Environment and Investment Law
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Research Handbook on Environment and Investment Law

Edited by Kate Miles

The Research Handbook on Environment and Investment Law examines one of the most dynamic areas of international law: the interaction between international investment law and environmental law and policy. The Research Handbook takes a thematic approach, analysing key issues in the environment–investment nexus, such as freshwater resources, climate, biodiversity, biotechnology and sustainable development. It also includes sections which explore regional experiences and address practice and procedure, and offers innovative approaches and critical perspectives, including the interface between foreign investment and the environment with human rights, gender, indigenous peoples, and economics.
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Chapter 3: Sustainable development and international investment law

Andrea K. Bjorklund

Abstract

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.

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