Abstract
This article reviews India’s International Investment Agreements including its Bilateral Investment Treaty models in the light of Non Investment Concerns (NIC) and the integration—or not—of related measures furthering the State’s normative autonomy. In this context, particular attention is paid to the following issues: the right to regulate, human rights, development, labour, corporate social responsibility, the environment and anti-corruption. While certainly subjective, this perspective is based on today’s most recurring treaty practices, which respond, even timidly, to pressing “societal” challenges treaty drafters and adjudicators do not yet dare to formulate in a rights, and precisely human rights, language. The paper later shows the importance of a right-based approach in a changing international context and concludes in favour of a greater and original integration of NIC in India’s current negotiations and treaty drafting.
Highlights
In reaction to the problematic increase of global trade disputes, India recently expressed its reluctance to see certain ‘‘Non Trade Concerns’’ (NTC), including labour and the environment, introduced in the World Trade Organisation (WTO)’s purview
To a lesser extent, emerging economies have traditionally associated their global attractiveness to a rather loose normative framework of protection for labour and the environment creating a comparative advantage in trade, these disastrous views for a sound and sustainable development have only but been reinforced by the technicalization and strategic division of international law in many sub-disciplines eventually read in isolation to meet short term policy objectives
Lex specialis, ‘‘self-contained’’ regimes, and regionalism have been advanced as many explanations of the current international law complication while, at the same time, jus cogens, ‘‘systemic integration’’ and repeated incantations to refer to the Article 31 (3) (c) of the Vienna Convention of the Law of Treaties[4] (VCLT) are supposed to provide drafters and judges with solutions in favour of a pluralistic and integrative vision of international law as well as the integration of Non Trade Concerns in trade law.[5]
Summary
In reaction to the problematic increase of global trade disputes, India recently expressed its reluctance to see certain ‘‘Non Trade Concerns’’ (NTC), including labour and the environment, introduced in the World Trade Organisation (WTO)’s purview. Security, rural development, poverty alleviation, and the environment.[6] In this context, the ‘‘multi-functionality’’ of agriculture already addressed by the Organisation for Economic Cooperation and Development (OECD) in its March 1998 Communique,[7] has been stressed by the WTO itself in the preamble of the Agreement on Agriculture: commitments under the reform programme should be made in an equitable way among all Members, having regard to Non Trade Concerns, including food security and the need to protect the environment; having regard to the agreement that special and differential treatment for developing countries is an integral element of the negotiations, and taking into account the possible negative effects of the implementation of the reform programme on least-developed and net food-importing developing countries This apparently simple reasoning has generated numerous heated debates from the early years of the WTO.[8] The absence of a clear definition of what could be a NTC contributed to the confusion and developing countries fears to see their trade policies impeded by externally imposed ‘‘western’’ values and standards. It shows the importance of a right-based approach in a changing international context (II) and concludes in favour of a greater and original integration of NIC in India’s current negotiations and treaty drafting
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