Human Rights in International Investment Disputes

Abstract

Are human rights taken into consideration in international investment law and dispute settlement? The controversy surrounding this now tedious debate has largely been fuelled by political and economic interests rather than convincing legal arguments. Interestingly indeed, the apparent contradiction between norms could be easily resolved if a political and economic will to read the law from a holistic perspective making use of its many flexibilities could eventually manifest itself. Twenty years after the creation of the World Trade Organization (WTO) and the massive adoption of investment treaties promoting and protecting FDI, the complexities of today’s international economic law scene as well as the recent defiance of developing, but also developed countries, towards trade and investment instruments and dispute settlement in particular calls for a paradigm shift, that of the reconsideration of the State’s sovereign attributes and duty to regulate in the favour of the public interest and the protection of human rights. In relation to these changes, the rapid development of global mega investment cases (Bhopal, Chevron-Texaco v. Ecuador, Philipp Morris), which are litigated, often in parallel proceedings, at various jurisdictional levels and on the basis of a complex network of domestic and foreign norms dramatically modifies the way investment disputes are settled. In going far beyond the usually studied international investment arbitration cases, these disputes pose a global litigation challenge while responding, at the same time, to the question of international law reunification. In this context, this chapter proposes to revisit the now traditional international economic law approach of human rights in international investment arbitration in underlying the instrumental and artificial character of the presupposed normative contradiction (I) to then go beyond international investment dispute settlement (ISDS) and show why an alternative (human) rights-based perspective is needed to not only provide victims with essential remedies, but also participate in international law reunification (II).