Incorporating human rights provisions into bilateral investment treaties: a quest for possibilities

Abstract

Incorporating human rights concerns into bilateral investment treaties (BITs) have continuously been proposed by many scholars. The main objective of this proposal is to strengthen the legal accountability of TNCs for human rights violations. This article analyses the possibilities for an agreement between home and host countries to incorporate human rights provisions in BITs. It identifies a number of indicators whose presence can increase the likelihood of the incorporation of human rights provisions in BITs. These are 1 the level of human rights performance, democracy, and participation of civil society 2 effective domestic enforcement 3 stable investment environment 4 broad investment sectors. This article demonstrates that the proposed framework can possibly materialise between countries when these four indicators are present. In particular, host countries with these indicators have more power to demand the inclusion of human rights obligations into BITs. More importantly, with these indicators in hand, TNCs’ resistance to the proposed BITs can be minimised.