Individual-Rights Screening of International Investments As An Instrument of EU External Trade and Investment Governance

Abstract

How can Europe remain true to its values in the face of outside economic forces? In today’s multipolar world economy, the EU’s founding values are not necessarily shared or enforced by many of its important global trading partners. Other economic systems, such as ‘State capitalism’, ‘anarcho-capitalism’ or ‘crony capitalism’, which may be indifferent to the values enumerated in Article 2 TEU, make their presence felt through transnational interactions. Even where such values are shared, they may be differently enforced. Economic interactions may in fact encourage a ‘race to the bottom’ of the levels of enforcement. Both between and within nations (and within the EU itself), the dialectic between the enforcement of fundamental values and economic globalization means that those values are increasingly at risk of being undermined. This paper explores how individual rights (collectively, IRs)—chiefly fundamental or human rights, but also social and environmental rights—can be rendered enforceable on the international plane indirectly via multinational enterprises as agents of globalization. This approach stands in contrast with the existing paradigm of international economic law of placing the (sole) burden of IR compliance on State actors. The paper asks how a coordinated system of inward and outward IR investment screening and authorization can ensure that global investment flows are made conditional upon the observance of IRs. It is posited that IR screening would provide transparency and a legal remedy concerning the respect for fundamental societal values protected under existing international instruments, but which currently lack effective remedies of enforcement.