Human Rights Law and the Investment Treaty Regime

In its current form, the international investment treaty regime may stymie the business and human rights agenda in various ways. The regime may incentivize governments to favour the protection of investors over the protection of human rights. Investment treaty standards enforced through investor-state arbitration risk adversely affecting access to justice for project-affected rights holders. More broadly, the regime contributes to a system of global economic governance that elevates and rewards investors’ actions and expectations, irrespective of whether they have adhered to their responsibilities to respect human rights. Without comprehensive reform, investment treaties and investor-state arbitration will continue to interfere with realization of human rights and broader public interest objectives.

This Chapter provides an overview of the interaction between human rights law and the investment treaty regime. It highlights the challenges that arise from tension between international human rights and investment norms, including the impact of the investment regime on the ability of host states to regulate and on access to justice for investment-affected rights holders. The chapter also explores whether and how human rights issues have been addressed by the investment regime to date, highlighting recent developments in treaty drafting practice and responses to human rights argumentation by investment tribunals. It notes the shortcomings of current approaches, and concludes by briefly setting out options for reform.

*This working paper was finalized and published in the Research Handbook on Human Rights and Business, published by Edward Elgar and edited by Surya Deva and David Birchall. The final chapter should be cited as follows: Jesse Coleman, Kaitlin Y. Cordes, and Lise J. Johnson, “Human Rights Law and the Investment Treaty Regime” in Surya Deva and David Birchall (eds) Research Handbook on Human Rights and Business (Edward Elgar, 2020).

*The material cannot be used for any other purpose without further permission of the publisher, and is for private use only