The Role of Human Rights in Investment Law and Arbitration: State Obligations, Corporate Responsibility, and Community Empowerment

2020 ◽  
Author(s):  
Silvia Steininger
Keyword(s):  
Human Rights ◽  
Corporate Responsibility ◽  
Community Empowerment ◽  
State Obligations ◽  
Investment Law

Social movements, reframing investment relations, and enhancing the application of human rights norms in international investment law

2020 ◽  
pp. 1-28
Author(s):  
Moshe Hirsch
Keyword(s):  
Human Rights ◽  
Social Movements ◽  
International Investment ◽  
Human Rights Law ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Public Pressure ◽  
Local Actors ◽  
Investment Law

Abstract The recent moderate trend to increasingly apply human rights law in investment awards is accompanied by certain new investment treaties which include expressed human rights provisions. An analysis of recent investment awards indicates that though there are some ‘winds of change’ in this field, it is equally noticeable that human rights law is far from being mainstreamed in international investment law. Investment arbitration procedural law is also undergoing a process of change, and the new procedural rules tend to enhance public elements in the investment arbitral system. This study is aimed at explaining these recent legal changes, highlighting the role of social movements in reframing investment relations as well as increasing public pressure to apply human rights law. These framing changes concern broadening the frame of investment arbitration (beyond the foreign investor–host state dyad), reversing the perceived balance of power between investors and host states, and zooming-in on local individuals and communities residing in host states. The discussion on factors impeding legal change in this field emphasizes the role of the private legal culture prevalent in the investment arbitration system, which is reflected and reinforced by certain resilient socio-legal frames. Informed by this analysis, the study suggests some legal mechanisms which can mitigate the inter-partes frame, and increase the application of human rights law in investment arbitration; inter alia, rigorous transparency rules that are likely to facilitate increased public pressure on tribunals and increase the participation of social movements representing local actors in arbitral processes.

s.Two Implementation and Accountability, 8 Justiciability of Human Rights for Health

2020 ◽  
Author(s):  
Flood Colleen M ◽  
Thomas Bryan
Keyword(s):  
Public Health ◽  
Human Rights ◽  
Right To Health ◽  
Health And Human Rights ◽  
Proper Role ◽  
Health Related ◽  
State Obligations ◽  
The Right ◽  
The Impact

This chapter examines both the power and limitations of litigation as a means of facilitating accountability for the advancement of public health. While almost half of the world’s constitutions now contain a justiciable right to health, the impact of litigation has been mixed. Judicial accountability has, in some cases, advanced state obligations to realize the highest attainable standard of health, but in other cases, litigation has threatened the solidarity undergirding public health systems. There is significant country-to-country variation in interpreting health-related human rights, as well as differing views of the proper role of courts in interpreting and enforcing these rights. Surveying regional human rights systems and national judicial efforts to address health and human rights, it is necessary to analyze how courts have approached—and how they should approach—litigation of the right to health and health-related human rights to improve health for all.

The Role of Regional Courts in the Development of International Investment Law: The Case of NAFTA Chapter 11 Dispute Settlement Framework and ECtHR

2018 ◽  
Vol 11 (1) ◽  
pp. 77-95
Author(s):  
Collins C. Ajibo
Keyword(s):  
Human Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
European Court ◽  
Margin Of Appreciation ◽  
Investment Law ◽  
Nafta Chapter 11

AbstractRegional courts have synthesized, articulated, and elucidated certain principles of law that influence the development of international investment law. The contributions of NAFTA Chapter 11 dispute settlement framework and European Court of Human Rights (ECtHR), in particular, have been outstanding. For instance, NAFTA jurisprudence has guided investor-state dispute settlement (ISDS) tribunals through influential precedents. Similarly, the doctrine of proportionality and the margin of appreciation doctrine which emerged from the ECtHR jurisprudence have become embedded in international investment law. Indeed, given the unique contributions of regional courts and their rapid proliferation, it can be predicted that they will play even more significant roles in the future development of principles of international investment law. Arguably, such emergent principles should be subjected to a prior scrutiny and filtering by ISDS institutions as a precondition to full incorporation into international investment law to foster their legitimacy and credibility.

scholarly journals ‘What Does This Mean?’: How UK Companies Make Sense of Human Rights

2017 ◽  
Vol 2 (2) ◽  
pp. 249-273 ◽  
Author(s):  
Louise J OBARA
Keyword(s):  
Human Rights ◽  
Qualitative Study ◽  
Empirical Data ◽  
Corporate Responsibility ◽  
Protection Of Human Rights

AbstractHow do companies understand and talk about human rights? Do they consider human rights a moral, legal or political construct? What type of responsibility do they assume in respect of human rights (e.g., direct/indirect, narrow/broad)? Is the language and label of human rights used within day-to-day practice? This article attempts to address these questions by drawing on empirical data collected as part of an in-depth, qualitative study on the development of human rights within 22 UK companies. Through an analysis based on sensemaking, the article explores the meaning of human rights, the grounds used to justify corporate responsibility, and the human rights terminology and labels employed within the corporate setting. It then analyses what this understanding and discourse means for the debate about the role of private entities for the protection of human rights.

scholarly journals Protection of Property Rights in Crimea: The Tools of International Investment Law compared to the Mechanism of the European Convention on Human Rights

2021 ◽  
Vol 46 (1) ◽  
pp. 131-146
Author(s):  
Maren Krimmer
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
International Investment ◽  
European Convention ◽  
Foreign Direct Investments ◽  
Effective Protection ◽  
International Investment Law ◽  
Occupied Territory ◽  
Investment Law

Abstract The Crimean conflict has been a challenge to the international community not only politically since the role of international law has now been questioned, especially concerning its interpretation and even applicability. As Crimea now falls into the category of an annexed/occupied territory, it is worth examining whether effective protection is afforded to property rights relating to foreign direct investments (fdi s) on Crimean territory. Foreign Direct Investments are usually protected by bilateral investment treaties (bit s) and this paper examines whether the Russia-Ukraine bit can guarantee an effective protection for property and also what other tools may exist for guarantee this protection. The article shows that there are two different “toolkits” which can protect investors’ property rights. Thus, not only the Russia-Ukraine bit can guarantee effective protection of property protection but also another tool, which is the European Convention on Human Rights. Both tools, the Russia-Ukraine bit and the echr protect the property rights and can co-exist.

Investor Obligations for Human Rights

2020 ◽  
Author(s):  
Barnali Choudhury
Keyword(s):  
Human Rights ◽  
Corporate Responsibility ◽  
International Investment ◽  
International Investment Law ◽  
Business And Human Rights ◽  
International Investment Agreements ◽  
Human Rights Movement ◽  
Investment Law ◽  
Human Rights Norms ◽  
Investment Agreements

Abstract Despite progress being made in the business and human rights field in defining corporate responsibility for human rights, defining foreign investors roles vis-à-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.

The Role of International Investment Law in the Business and Human Rights Legal Process

2019 ◽  
Vol 21 (1) ◽  
pp. 35-55
Author(s):  
Ludovica Chiussi
Keyword(s):  
Human Rights ◽  
International Investment ◽  
International Human Rights Law ◽  
Corporate Accountability ◽  
International Investment Law ◽  
Business And Human Rights ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

Abstract This article examines the interplay between international investment law and international human rights law in order to assess whether the former can be used to foster corporate accountability for violations of human rights. The role of international investment agreements in ensuring corporate compliance with human rights will be addressed, together with the approach to human rights violations of corporations by international investment tribunals. Whilst acknowledging some inherent limits of IIL, the underling argument of the paper is that rebalancing rights and obligations of investors may give teeth to corporate human rights accountability, while also benefitting the legitimacy of IIL.

Peru’s ‘Intercultural Law’ Proposal

2020 ◽  
pp. 494-515
Author(s):  
Clara María López Rodríguez
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Indigenous Peoples ◽  
Human Rights Law ◽  
Investment Arbitration ◽  
International Legal System ◽  
Investment Law ◽  
Domestic Level

This chapter critically analyses the role of indigenous peoples in international decision-making focusing on two areas of international law: human rights law as adjudicated by the Inter-American Court of Human Rights (Inter-American Court) and investment law as applied by investment arbitration tribunals. The chapter shows that indigenous peoples’ participation in the international legal system can be better facilitated through the recognition of indigenous peoples’ jurisdiction. Focusing on Peru as a case study, this chapter provides a better understanding of the concept of indigenous peoples’ jurisdiction, analysing its nuances and difficulties, but also the importance of regulating such jurisdiction at the domestic level.

scholarly journals BUSINESS AND THE POLITICS OF HUMAN RIGHTS: The Protection of Human Rights Defenders by State and Business as an Opportunity to Build Up a Democratic Society in Brazil

2018 ◽  
Vol 17 (1) ◽  
Author(s):  
Ulisses Terto Neto
Keyword(s):  
Human Rights ◽  
Corporate Responsibility ◽  
Final Section ◽  
Democratic Society ◽  
Society Business ◽  
Brazilian State ◽  
Protection Of Human Rights ◽  
The Relationship ◽  
International Hr

Abstract This paper considers the interplay of international law, politics and national law in the protection of human rights defenders (HRDs) that are challenging businesses practices in Brazil. It argues that the Brazilian State and transnational and domestic businesses have a responsibility to protect HRDs and should adopt robust means of doing this, embracing their work as opportunity rather than a threat in building up a democratic society. To demonstrate the validity of this claim, this paper highlights the role of HRDs in promoting corporate responsibility and in exposing and remedying the adverse human rights (HR) impacts of business in Brazil. It further explains how HRDs working on issues of corporate responsibility and accountability are under threats and attacks from both state and non-state actors as a result of their work. The paper then analyses some of the responses from the organized civil society, business, and the Brazilian State in order to tackle violence against HRDs. The paper considers that the relationship between business and the Brazilian State is dialectical and complementary and, as such, should be arbitrated by the international HR system. In this process, the paper calls for a binding instrument to regulate the activities of transnational corporations and other business enterprises to be adopted at the UN level and argues that it could potentially influence the rhetoric and practices in the politics of HR in Brazil. The final section provides an explanation for how the Brazilian State and transnational and national businesses should protect HRDs. Keywords: Business. Human Rights. Human Rights Defenders.

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