Investor Obligations for Human Rights

Abstract

Despite progress being made in the business and human rights field in defining corporate responsibility for human rights, defining foreign investors’ roles vis-a-vis human rights remains mainly stagnant. The idea that businesses have responsibility for human rights is well ensconced in global norms and is based on society's expectations of business in the 21st century. Yet despite this widespread recognition, international investment law is silent on the matter. This leaves a disconnect between the norms dictating the corporate responsibility for human rights in public international law and those found in international investment law.

One way to better align progress in the business and human rights movement with international investment law is to introduce investor obligations for human rights. These obligations can be located both in investment treaties as well as in non-treaty sources. Moreover, investment arbitration provides multiple entrypoints for tribunals to consider such obligations, for example through counterclaims, jurisdictional claims, or admissibility claims, among others.

Two primary benefits arise from introducing investor obligations for human rights. First, it can act as vehicle by which business and human rights norms, generally, can be enforced. Second, and more importantly, introducing investor obligations for human rights can help to better contextualize the interpretation of IIAs. Introducing such obligations can be used to remind tribunals that international investment law operates in a system that includes non-investment concerns such as human rights.

Considering such obligations, in and of themselves, however, are unlikely to prompt wider changes in international investment law. Nevertheless, including investor obligations in international investment law may prompt tribunals to give more balanced interpretations to international investment agreements. This can work towards ensuring that international investment law serves its ultimate aim of promoting a state’s development.

Keywords: International Investment Law, Human Rights, Investment Arbitration, Business and Human Rights

JEL Classification: K20, K33, K39, F23, F53, F55, F63