Human Rights Provisions in International Investment Treaties and Investor-State Contracts

Abstract

Today there is ample recognition that corporations have responsibilities to protect human rights in the context of their business operations. However, there is less recognition that foreign investors have concomitant duties in the context of foreign investment, despite the fact that many foreign investors operate as corporations.

Nevertheless, an increasing number of states are beginning to include references to human rights in their investment treaties and investor-state contracts. While in some instances, states refer to human rights generally in their treaties or contracts, a small but growing number of states address specific human rights such as indigenous and gender rights within the ambit of their treaty or contract.

Often treaties or contracts only refer to human rights in vague or non-obligatory language. Yet, gradually more and more states are beginning to include more stringent language. Nowhere is this more apparent than in some investor-state contracts, which are now beginning to include both positive and negative obligations for foreign investors in regards to human rights.

Yet regardless of the approach, references to human rights in investment treaties and investor-state contracts offer three advantages. They can help protect states’ regulatory sovereignty, work towards establishing human rights obligations for foreign investors, and provide context for their interpretation. All three of these benefits work towards reducing the asymmetries inherent in international investment law.

Keywords: International Investment Law, Business and Human Rights, Human Rights, Investor-State Contract, Investor-State Dispute Settlement, Environment, Regulatory Sovereignty, Interpretation

JEL Classification: K33, K22,